Spring 2018 Spring 2018 Volume VIII

LGBTQ POLICY JOURNAL A student publication LGBTQ POLICY JOURNAL | A Harvard Kennedy School student publication

LGBTQ POLICY JOURNAL of the John F. Kennedy School of at

VOLUME VIII 2017-2018 http://lgbtq.hkspublications.org/ All views expressed in the LGBTQ Policy Journal are those of the authors or interviewees only and do not represent the views of Harvard University, the John F. Kennedy School of Government at Harvard University, the staff of the LGBTQ Policy Journal, the advisory board, or any associates of the journal.

© 2018 The President and Fellows of Harvard College. All rights reserved. Except as other- wise specified, no article or portion herein is to be reproduced or adapted to other works without the express written consent of the editors of the LGBTQ Policy Journal at the John F. Kennedy School of Government at Harvard University. TABLE OF CONTENTS 2018 EDITION

iv Acknowledgment & Appreciation

1 Letter from the Editor

3 Identity Laws: The Legal Status of Global / Recognition J. Michael Ryan

17 against Sexual Minorities in and Housing: Evidence from Two Field Experiments in Serbia Dominik Koehler

31 Generating Real Social Inclusion: Work and Identity Politics in the Trans and Travesti Rights Movement in Isabel Cruz

43 LGBTQ Perceptions of the Police: Implications for Mental Health and Public Policy Sriya Satuluri and Kevin Nadal

57 A Tale of Two Judgments: The Afterlives of a Defeat and a Victory for Rights in Danish Sheikh

71 Building Bridges, Not Walls: Intersectional Analysis and the Next Frontier in the Corporate Equality Movement Nii-Quartelai Quartey, Lani Fraizer, Gabby Miramontes

85 LGBTQ Servicewomen in the Women’s Army Corps during the Second World War Mary Claire Phillips

Spring 2018, Volume VII | iii ACKNOWLEDGMENT & APPRECIATION

EDITORIAL STAFF Ewelina Rudnicka Editor-in-Chief Andrew Kyprianides Managing Editor for Online Presence Elyse Voegeli Managing Editor for Print Edition Jonathan Lane • Jonathan Marshall • Jessi Whitby Editors

ADVISORY BOARD Masen Davis Global Action for Trans* Equality Jeff KrehelyRoosevelt Insititute Louis Lopez US Office of Special Counsel Timothy McCarthy John F. Kennedy School of Government at Harvard University Carl Sciortino AIDS Action Committee Winnie Stachelberg The Center for American Progress

JOHN F. KENNEDY SCHOOL OF GOVERNMENT AT HARVARD UNIVERSITY SUPPORT Douglas Elmendorf Dean Richard Parker Faculty Advisor Martha Foley Publisher Andreina Seijas Web Presence Management The Harvard Kennedy School Student Government (KSSG)

A SPECIAL DEBT OF GRATITUDE The Foundation, which has been the Journal’s long standing supporter and champion of LGBTQ causes across the US. Their help has contributed to the mission of the Journal to promote, disseminate, and foster public policy in the field.

A particular thanks to James Evans, Publications Coordinator at the Fairbank Center for Chinese Studies, Harvard University, for his beautiful design which we have graciously been permitted to use for our cover.

Finally, thank you to those who support the global cause of LGBTQ rights in ways large and small—not only in speaking out when those rights are threatened and standing up when democrats and autocrats try to marginalize and delegitimize our existence, but also in reaching out and reaching across all ideological lines and having the tough conversations to change hearts and minds that will someday pay invaluable dividends to our collective social, political, and legal progress.

iv | LGBTQ Policy Journal LETTER FROM THE EDITOR

Dear Readers,

Last year, upon the inauguration of the new president, one of my mentors made the prediction that reversal of LGBTQ rights would happen not on the national stage but in state and local contexts. While this has been only partially true, it has become an inspiration for the content of the Journal’s eighth volume. In the 24-hour news cycle, it is a natural tendency to turn to the changes which affect the largest groups of people. But I see it as the mission of the LGBTQ Policy Journal to carve out a space for us to discuss and debate policy issues that affect the community. In fact, with the Journal we are given a unique opportunity as the only such publication in the country. This brings the responsibility to show- case policy lessons, which guide and warrant caution; to illuminate common struggles but question monolithic perceptions of LGBTQ communities; and to inspire inclusive and respectful public policy debate, a mission all publications should espouse. The eighth volume of the Journal then explores the distinctive meanings and battles LGBTQ rights take on in different contexts. The Trans Labor Quota Law, unique on a global scale yet rooted in the specific Argentine context, illuminates how trans commu- nities can mobilize and get their message across. Lessons on how legislation may be a double-edged sword are further explored in the analysis of two Indian laws criminalizing and grant- ing constitutional rights to individuals respectively. These court cases showcase how introduction of new laws may add momentum to community organizing or provoke backlash, result- ing in a curtailment of rights. Further, we observe how legal concep- tions of gender identity vary in three countries, discussing the need for gender markers at all. As we ask ourselves more and more often about the responsi- bilities of large corporations towards our society, we raise the same questions with regards to the LGBTQ community and employees. Why and how can corporations be good champions, and how does that translate to LGBTQ employees who find themselves covering their or gender identity? The Journal also takes pride in presenting innovative research design and new intersectional analyses. A prime example is the presented World Bank study, which utilizes a mystery shopping technique to investigate discrimination towards and people in the education and housing sectors in Serbia. Elsewhere, the Journal turns to the much discussed issue of police and perceptions, addressing the lack of focus on LGBTQ individuals in- teractions with and perceptions of police. An intersectional analysis on police perception and mental health of LGBTQ persons remains an understudied area for policymakers.

Spring 2018, Volume VII | 1 Finally, in the wake of the trans military ban that reverberated throughout 2017, we turn to the military context. As a result of the military ban, the American public has been exposed to courageous stories of trans soldiers and their service to their country. The Jour- nal, in a piece based on archival research, traces the service of queer women through World War II and highlights the Women’s Army Corps’ understanding of gender and female sexuality. As I consider the content for this year’s volume, the main goal was to present distinctive contexts where change was made or re- versed, creating lessons for all of us as policymakers. It is my hope as well that with this content, the Journal celebrates these change- makers: those who march and chant, and those who speak with their opponents at the same table. Going forward, we will need both.

Ewelina Rudnicka Editor-in-Chief Cambridge, MA

2 | LGBTQ Policy Journal Gender Identity Laws: The Legal Status of Global Sex/Gender Identity Recognition

J. Michael Ryan, PhD Instituto de Ciencias Sociais Universidade de Lisboa

Abstract Official identity is a powerful thing. More than just feelings, diagnosis, or behaviors, official identity marks the status by which one can gain, or lose, access to certain social rights, responsibilities, and privileges. It can be predicated on biology or on the “determination” of other social identities. And it can serve as the means by which other identities can be determined. The ability to alter one’s official identity is a key mechanism whereby one can essentially change who they are, and what they can become, in the eyes of the law. This paper will examine three principal types of global gender recognition identity laws—those that require official approval by “experts,” those that provide options for a , and those that allow for self-declaration. Case studies will be examined of laws in the United Kingdom, Nepal, and Argentina respectively to demonstrate the potential benefits and shortcomings of each type of law. The conclusion will consider the potential ramifica- tions of removing gender as an official identity marker entirely, a now considered by some to be the end result or goal of many of these laws.

Bio J. Michael Ryan is currently a researcher for the TRANSRIGHTS Project at The Univer- sity of Lisbon (Portugal) funded by the European Research Council. He received his PhD in Sociology from the University of Maryland (). He has previously taught courses at The American University in Cairo (Egypt), Facultad Latinoamericana de Cien cias Sociales (FLACSO) in Quito, Ecuador and the University of Maryland. Before return- ing to academia, Dr. Ryan worked as a research methodologist at the National Center for Health Statistics in Washington, DC. He is the editor of Core Concepts in Sociology (2018) and co-editor of Gender in the Contemporary Middle East (with Helen Rizzo, 2018), Sexualities in the Contemporary Middle East (with Helen Rizzo, 2018), The Wiley-Blackwell Encyclopedia of Social Theory (with Bryan Turner et al. 2018), The Wiley-Blackwell Encyclopedia of Con- sumption and Consumer Studies (with Daniel T. Cook, 2015), and The Concise Encyclopedia of Sociology (with George Ritzer, 2011). He has also served as advisory editor on The Wi- ley-Blackwell Encyclopedia of Gender and Sexuality Studies. Dr. Ryan has published on issues related to gender, sexuality, consumer culture, and research methodology.

Spring 2018, Volume VII | 3 Official gender identity is a powerful thing. A number of international organizations More than just feelings, diagnosis, or be- have also issued official statements regard- haviors, official identity marks the status ing the rights of trans people and gender by which one can gain, or lose, access to identity. For example, The certain social rights, responsibilities, and Committee has urged states privileges. It can be predicated on biology to “recognize the right of transgender per- or on the “determination” of other social sons to a change of gender by permitting identities. And it can serve as the means by the issuance of new birth certificates,” cit- which other identities can be determined. ing the rights to privacy, equality, and recog- The ability to alter one’s official identity is a nition before the law.4 Additionally, in 2011 key mechanism whereby one can essentially the UN High Commissioner for Human change who they are, and what they can be- Rights recommended that states “facilitate come, in the eyes of the law. legal recognition of the preferred gender of The , which have transgender persons and establish arrange- become the “standard-setting document”1 ments to permit relevant identity docu- cited by judges, legislators, and government ments to be reissued reflecting preferred officials around the world on issues related gender and name, without infringements to sexual orientation and gender identity, of other human rights.”5 A report by the state that the ability to be legally recognized United Nations Development Programme as one’s preferred gender is a fundamental has also called for action to “build aware- human right. Principle 3 states that “each ness about the importance of the right to person’s self-defined gender identity is in- legal gender recognition, including its links tegral to their personality and is one of the to other rights.”6 And the World Health most basic aspects of self-determination, Organization’s 11th International Classi- dignity, and freedom” and that “no one shall fication of Diseases, due out in 2018, will be forced to undergo medical procedures, remove all trans-related diagnoses from the including , steril- mental health chapter. Instead they will be isation, or hormonal therapy, as a require- moved to a chapter titled “Conditions Re- ment for legal recognition of their gender lated to Sexual Health” and will include the identity.”2 Additionally, The World Profes- diagnoses “gender incongruence in adoles- sional Association for Transgender Health cence/adulthood” and “gender incongru- (WPATH) issued a statement in November ence in childhood.”7 2017 recognizing that, On a regional level, in 2002 The Euro- For optimal physical and mental health, pean Court of Human Rights ruled in the persons must be able to freely express case of Goodwin v. United Kingdom that their gender identity, whether or not Council of Europe member states must that identity conforms to the expecta- provide for the possibility of legal gender tions of others. WPATH further recog- recognition based on the “right to pri- nizes the right of all people to identity vate and family life” delineated in Article documents consistent with their gender 8 of the European Convention on Human identity, including those documents Rights. And in 2015, the Parliamentary As- which confer legal gender status. Such sembly of the Council of Europe adopted documents are essential to the ability of a resolution to “adopt transparent and all people to enjoy rights and opportu- accessible legal procedure of recognition nities equal to those available to others; of gender self-identity without further re- to access accommodation, education, strictions” and “to consider the inclusion employment, and health care; to travel; of the third gender option in gender iden- to navigate everyday transactions; and tity documents for those seeking such a to enjoy safety.3 status.”8

4 | LGBTQ Policy Journal The ability to be legally recognized by their official documents to match their gen- your self-determined gender identity is im- der identity.13 And according to a November portant for many reasons. As M. Dru Levas- 2017 survey by Pew Research Center, about seur noted, “Justice for transgender people 44 percent of Americans believe that “some- is linked to the validation of self-identity— one can be a man or a woman even if that is you are who you know yourself to be.”9 A different from the sex they were assigned at recent European Union (EU) wide survey birth.”14 As Van den Brink et al. have noted, found that 73 percent of trans-identified re- “the impossibility [of changing] one’s legal spondents expressed the belief that easier sex as such is increasingly regarded as gender recognition procedures would allow old-fashioned and as being in conflict with them to live more comfortably as transgen- human dignity.”15 der people.10 Indeed, one of the complica- Sweden became in 1972 the first country tions faced by many trans11 individuals is in the world to allow individuals to change the difficulty of having conflicting docu- their legal gender identity marker. Since mentation regarding gender identity. This then, a growing number of legal mandates, can be the case when specific documents combined with the hard work of activists conflict (for example, being recognized as and increasing public support, has spurred female on a passport but as male on a birth even more countries around the world to certificate), or when one’s self-presenta- enact sex/gender identity recognition laws tion does not match the expected presen- that allow either a) for the registration of tation implied by a specific document (for individuals, b) for the recognition example, presenting as female but having of third, or nonbinary, , c) for indi- documentation indicating status as male). viduals to “alter” their official sex/gender The right to coherent, legal gender identity identity from that medically assigned at recognition, however, is not one that is, as birth, or d) some combination of the above. of yet, acknowledged by law in many coun- The implications of these laws are quite di- tries around the world. Just as noteworthy verse and highly context specific. Perhaps is the fact that, in many places where one more importantly to the individuals living can be legally recognized as their self-iden- in these jurisdictions, the requirements to tified gender, there are often considerable be eligible for these new forms of legal rec- costs for obtaining such recognition (e.g., ognition are equally as varied, ranging from financial and psychological costs, steriliza- self-definition to divorce to de facto forced tion, divorce, sworn oaths, medical diagno- sterilization. sis, etc.). It can be difficult to measure exactly Public opinion in favor of allowing indi- how many countries currently have what viduals the right to change their legal gen- might be considered gender-identity-based der identity is following suit with the law. laws (due, in part, to the varied provisions Even as far back as 2002, the statement of that could potentially fall under what might the European Court of Human Rights in be considered such a law). That said, a its Goodwin v. UK decision—that there was growing number of countries have laws on “uncontested evidence of a continuing in- the statute books that would generally be ternational trend in favour of increased so- accepted as some form of legal provision cial acceptance” of trans people and legal for allowing a recognition of, or change in, gender recognition—would become the official sex/gender status (among these are impetus for the UK’s Gender Recognition Japan, the United Kingdom, , Uruguay, Act 2004 (see more below).12 Further, a 2015 Argentina, Denmark, Malta, Colombia, Ire- European Commission survey found that 63 land, Vietnam, Ecuador, Bolivia, Norway, percent of respondents in the EU thought France, Canada, and Belgium). In addition, trans individuals should be able to change many other countries and jurisdictions are

Spring 2018, Volume VII | 5 beginning to make some provision for the from legislative frameworks in the United recognition of a third gender, or of intersex Kingdom, Nepal, and Argentina respectively individuals (for example, Nepal, India, Pa- to explore the potential benefits and short- kistan, , Australia, Canada, Ger- comings of each type of law. The conclusion many, Austria, New Zealand, Thailand, the considers the potential ramifications of re- United Kingdom, and the states of Oregon moving gender as an official identity marker and California in the United States). There entirely, a move now considered by some are also other countries that legally recog- scholars and activists to be the end result nize post-operative but do not or goal of many of these laws. recognize transgender individuals (for ex- This paper will only deal with countries ample, Egypt and Iran). In addition, there where there is a legal or administrative are a number of countries where such acts possibility of correcting/changing16 gender are currently pending approval (Chile, Lux- identity, and to do so with laws that allow embourg, Brazil, Costa Rica, Peru, and Swe- one to modify their official sex/gender iden- den), more than a dozen others where they tity without having to undergo surgical in- are currently being debated, and others (in- tervention. A number of countries allow cluding the United Kingdom and Portugal) an individual to change their official sex where the existing laws are currently under only after having undergone some kind of revision to bring them up to improved in- biological alteration (usually some form of ternational standards. a gender reassignment surgery). However, One noteworthy thing about the laws this article focuses only on those coun- described above is that, unlike what might tries where official identity can be altered be considered similarly “progressive” laws without requiring surgical intervention related to the rights of women or sexual mi- (although surgery is still often seen as a norities, these laws are truly global in scope, “helpful” prerequisite for approval in many existing in countries as diverse as Japan, Bo- such jurisdictions). It is unfortunate, in the livia, Norway, and Nepal. They can be found opinion of the author, that the vast major- in countries that are still considered to have ity of countries in the world still have no comparatively less “progressive” laws per- form of legal recognition in place, even to taining to women and sexual minorities; in the extent that being trans is often regarded countries that are predominantly Catholic, as a criminal offense with severe legal pun- Muslim, Buddhist, and Hindu; and in both ishments. That said, it is beyond the scope countries that are considered among the of this paper to deal with every country in most, and those considered the least, eco- the world; instead, the goal is to present a nomically developed. Unlike other types of picture of current global gender recognition laws that share similarities across laws with the supported assump- lines, gender identity recognition laws have tion that such laws are likely to be more, not emerged in many countries that do not less, commonplace in the future. share a common cultural, religious, ideo- logical, political, economic, or legal back- The More Things Change… : Binary ground. In fact, very little seems to unite Maintenance and the UK Gender these countries other than the fact that they Recognition Act 2004 all have some form of such laws. A growing critique of gender identity rec- This paper examines three principal ognition laws is that many, while a step types of global gender recognition identity forward for some members of the trans laws—those that require official approval community—those who qualify under the by “experts,” those that provide options purview of such laws’ requirements—they for a third gender, and those that allow for represent a further, and continued, mar- self-declaration. Case studies will be drawn ginalization of other trans people. The ar-

6 | LGBTQ Policy Journal gument is that they do so by continuing to legal system.18 At the time of its enactment, enforce heteronormative ideals of a gender the GRA was widely seen as one of the most binary. In other words, while the laws serve progressive trans rights laws in the world, in to allow those trans individuals who feel that it did not require surgical interventions either as a man or a woman to have their or taking prescribed hormones in order to self-stated gender recognized, they restrict alter official natal biological identity as reg- the options for gender to either male or istered on a birth certificate. This implied female. With this in mind, scholars and ac- that individuals who did not have the desire tivists have argued that these laws have had or the financial resources to undergo bodily the negative side effect of further codifying modifications could still seek an alteration heteronormative binary ideals of gender in their official identity. Further, by not re- into the law. quiring such bodily modifications, the GRA The Gender Recognition Act of 2004 became the first gender recognition legis- (GRA)17 in the United Kingdom made it lation in the world that did not require de possible for individuals to alter their official facto sterilization (something previously birth certificates, and to do so without hav- implied where surgical or hormonal inter- ing to undergo surgical interventions, take ventions were required).19 prescribed hormones, or to make a public Many celebrated the fact that the GRA announcement of their transition. The GRA seemed to break the ties between biologi- created Gender Recognition Panels com- cal sex and social gender.20 Indeed, the Act posed of medical and legal professionals itself uses the language of gender rather tasked with determining if applicants merit than sex defining “acquired gender” as “the a Gender Recognition Certificate (GRC), gender to which the person has changed” essentially a change in their officially recog- or “the gender in which the person is liv- nized gender which also allows for altering ing.”21 That said, many have argued that the birth records. In order to qualify for such GRA also serves to further perpetuate the a certificate, applicants have to be over legal notion of a binary gender order.22,23 18 years of age, have been medically diag- For example, there is no room in the GRA nosed with some kind of gender identity for the recognition of a third gender, or of disorder, present evidence that they have intersex individuals. In fact, the GRA only lived in their preferred gender for at least allows one to alter their identity from “one” two years, and declare that they intend to gender to “the other.” Thus, as Hines has live in their preferred gender for the rest of argued, those who “transgress” gender— their lives. The GRA also requires spousal for example, “Married trans people who consent if the individual is in a marriage or chose not to divorce and those who con- civil partnership. Further, the law contains struct gender identities outside the gender a provision, meant to protect the rights binary—remain on the margins of citizen- and privacy of those who obtain a GRC, ship.”24 In this way, the GRA, while allow- whereby it is illegal for someone to ask for ing for change on an individual level, still a GRC to verify sex, meaning that individ- maintains the larger rigid social dichotomy uals need only produce a corrected birth of two, and only two, . As Sandland certificate for legal identification as their has noted, “The legal act of recognition of preferred sex. transsexualism can be read as a case study The GRA received royal assent in July demonstrating the truism that any act of in- of 2004 and went into effect in April 2005. clusion also excludes.”25 After the ruling, a body of research began The GRA also falls short of full natal/ to emerge examining the GRA’s legal im- non-natal in that it still al- plications, including what it meant for un- lows for a number of exceptions to full legal derstandings of gender and sex in the UK recognition. For example, it includes a right

Spring 2018, Volume VII | 7 of conscience for Church of England clergy, possibility of gender transition hap- allowing them to not perform marriages or pening more than once is not as much other church related services for certain in- of an administrative problem as the dividuals. Similarly, the descent of peerages, Act would make it seem.”27 which determines how noble titles are in- herited within families, remains unchanged. Perhaps the most important shortcom- The GRA allows single-sex sports institu- ing of the GRA is that individuals wishing to tions and associations to exclude people alter their official gender identity must still whose present gender identity differs from submit themselves to an application pro- the gender assigned at birth if it is deemed cess, including approval from a number of necessary to maintain “fair competition or outside sources. A recent report by Trans- the safety of the competitors.”26 For non- gender Europe argues that “it is particularly governmental entities—such as universi- problematic that a person’s self-determina- ties—the GRA leaves it up to each entity’s tion is limited by depending on a third par- discretion as to whether or not it will alter ty’s opinion.”28 For example, for those who its official records to reflect changes in an are married, spousal consent is required on individual’s legal gender identity. the basis that the other partner agreed to Another drawback of the GRA is that enter into a particular type of legal union— it requires individuals to swear an oath either same-sex or opposite-sex—and so that they intend to live as their “newly” the alteration of official identity by one acquired gender for the rest of their lives. partner fundamentally alters the “nature” Thus, while it is progressive in the sense of the union itself. Further, the medical/ that it allows individuals to alter their legal psychiatric community must still make a di- identity to reflect who they feel they truly agnosis of , thereby main- are, it does not allow for gender fluidity taining the idea that being trans is an illness and further hinders individuals who might and continuing the pathologizing of trans experience multiple changes in gender individuals. Additionally, in order to obtain identity across the life course. It is also recognition, individuals must go before a seen by many as an unfair burden as few panel and plead their case before a panel other civil rights, including marriage, re- of so-called experts, rarely their peers, thus quire a lifelong commitment before they leaving the decision as to the legal reflection can be obtained, as Emily Grabham has of their own identity firmly in the hands of noted: others.29 Government authorities can cope with people changing other intrinsic Neither/Or: Adding a Third Gender aspects of their identity fairly often: Option in Nepal they respond to people being born One of the leading complaints about many and dying, they respond to changes existing gender identity laws is that they fail of address, they respond to people to account for individuals who fall outside ageing and therefore becoming eligi- of a typical heteronormative . ble and ineligible for benefits. They In other words, while they extend rights to also respond to people changing their some individuals—namely those who see marital or civil partnership status, themselves as either male or female—they their motor vehicle, their employer continue to marginalize others—namely (for purposes of tax and national in- those who see themselves as neither male surance), and their name. Gender nor female, or both male and female. The transition, in purely administrative rights of nonbinary individuals, however, terms, is no more of a burden than are beginning to be recognized as countries any other of these life events. The like , Canada, Australia, New Zea-

8 | LGBTQ Policy Journal land, India, Nepal, and others are allowing decision, however, created recognition for for legal identification as third gender. As a third legal gender, outlawed all discrim- van den Brink et al. have noted, “The per- ination against sexual and gender identity ception of gender identity issues seems minorities, and ordered significant govern- to be changing rapidly. Especially the idea ment action to make sure the decision was that gender identity cannot always be enforced. The court also ruled that gender squeezed in one of two legal boxes is gain- was based on “self-feeling” thereby exclud- ing ground.”30 ing the necessity of medical, psychiatric, or There are a range of identities used to legal intervention or approval to have one’s describe third gender individuals in Nepal gender recognized. The court decision read including methi, , and , among in part: others.31 The consistency across terms is If any legal provisions exist that re- that they are used to describe individuals strict the people of third gender from who either do not feel their current gender enjoying fundamental rights and matches that which was assigned to them at other human rights provided by Part birth, or those who do not identify as either III of the Constitution and interna- male or female. Although falling short of tional conventions relating to the proper conceptualization, third gender can human rights which Nepal has already be thought of as an umbrella category used ratified and applied as national laws, to represent those who many in the West with their own identity, such provi- might refer to as transgender. Third gender sions shall be considered as arbitrary, individuals have historically played a visible unreasonable and discriminatory.24 role in Nepali society. Bochenek and Knight have argued that, This right has been further enshrined in While thorough academic research on Nepal’s new constitution, which guarantees Nepal’s third gender category is lack- individuals the right to choose their own ing, among the explanations for its gender identity. Further, the government local cultural relevance are: the his- has enacted a “National Plan of Action on torical presence and, thus, contem- Human Rights” which includes plans such porary cultural acknowledgement of as “guarantee[ing] the right to dignified gender-variant people such as hijras; life of sexual and gender minorities,” “con- the local religious traditions contain- duct[ing] awareness programs to eliminate ing important third gender (nonmale/ myths and misbeliefs against sexual and female gender performing) charac- gender minorities,” and guaranteeing the ters; and the intense media focus on right to identify as third gender on all of- the violence against gender-variant ficial documents.35 In addition, the official people as the contemporary sexual federal census of Nepal became the first in and gender minority rights move- the world to include a third gender category ment emerged in Nepal.32 in 2011. Despite this seeming progress, there The Supreme Court of Nepal’s 2007 have been several issues with implementa- Pant v. Nepal decision has been hailed by tion of the laws. Bochenek and Knight have some as “the most far-reaching and pro- noted that “Since the court’s decision, the gressive SOGI [sexual orientation and Government of Nepal has implemented the gender identity] rights decision in South third gender category in piecemeal but pro- Asia.”33 Prior to this decision, both same-sex gressive moves. However, full implementa- sexual relations in Nepal and cross-dressing tion as the court mandated remains far from were considered crimes, and there was no a reality.”36 In fact, it was not until 2013, a full legal recognition of third genders. The Pant six years after the court’s decision, that the

Spring 2018, Volume VII | 9 first identity cards were issued to individu- Further, Hutton has noted that “Self-de- als requesting a third gender identity. Even termination is at the heart of the third of the since then, there have been numerous com- Yogyakarta Principles, ‘the Right to Recog- plaints of individuals being turned away for nition before the Law.’”40 Indeed, Principle discriminatory reasons or bureaucratic and Three states that technical inabilities to comply. For example, Everyone has the right to recogni- although the full federal census allowed for tion everywhere as a person before registration as a third gender, the more lim- the law … each person’s self-defined ited and in-depth version of the census still sexual orientation and gender iden- only allowed options for male or female. Fur- tity is integral to their personality and ther, many Nepalese third gender individuals is one of the most basic aspects of continue to report high levels of discrimina- self-determination, dignity and free- tion and violence in society in large. As Boyce dom … no status, such as marriage or and Coyle have noted, “There is dissonance parenthood, may be invoked as such in Nepal between a progressive legislative to prevent the legal recognition of a environment in respect of gender and sexual person’s gender identity.41 minority issues and everyday sociocultural ambivalence toward such sexual and gender After years of advocacy by the trans minority persons.”37 Despite these setbacks, community, the “Ley de Genero” was ap- however, the legal situation in societies rec- proved on 8 May 2012 by the Argentine Sen- ognizing a third gender has represented sig- ate in a unanimous vote of 55-0 (with one nificant progress in destabilizing the global abstention) and became the first gender of a gender binary and in allowing recognition law in the world to allow for individuals outside of that binary to find rep- self-determination.42 Kohler and Ehrt argue resentation and recognition. that on a global level this law represented “no less than a shift in Legal Gen- I am Who I say I am: Gender Self- der Recognition Legislation.”43 Indeed, the Declaration in Argentina law has been hailed by a number of inter- Arguably the gold standard in gender iden- national agencies, including the United Na- tity laws are those which rely purely on tions, as the standard by which to measure self-determination and remove the neces- gender identity recognition, and has been sity of medical intervention or approval used as a model for other countries imple- by a medical professional or judge. These menting self-determination laws. To date, self-determination models are often re- six other countries (Malta, Ireland, Den- garded as falling in line with human mark, Norway, Sweden, and Belgium) have rights laws that guarantee bodily integrity modeled their own gender identity laws on and freedom of personal expression.38 As Argentina’s. Romeo has noted, The Ley de Genero (henceforth referred This conception of gender—a self-de- to as the Ley) is considered progressive in termination model—has the potential that it does not require any bodily modifi- to provide a broader regime of rights cations—neither surgery nor hormones— for gender-transgressive people that nor approval by any medical, psychiatric, or could encompass the right of any legal professional in order for an individual person to have their gender identity to request a change in their legal gender. In recognized, to access safe and ap- fact, rather than “applicants,” individuals propriate sex-segregated spaces, to are now seen as autonomous in their abil- receive healthcare related to their ity to have their gender identity recognized. gender identity, and to be free from To date, there have been no refusals and no discrimination on these grounds.39 reported cases of fraud. More than 3,000

10 | LGBTQ Policy Journal individuals made use of the law in its first laws, perhaps even more importantly, the year alone, with more than 10,000 having Ley has had positive effects for the well-be- done so since then. The only requirements ing of trans citizens of Argentina. According are that individuals be over the age of 18 to a poll conducted by Ipsos with BuzzFeed years (although provisions exist for those News and the UCLA Law School’s Williams under 18—see below) and provide the Na- Institute, 48 percent of Argentinians sup- tional Bureau of Vital Statistics with details port allowing individuals to change their of their new name and picture to ensure legal sex without any restrictions, making it consistent amendment of birth certificate, the second highest approval rating of those public records, and a new identity card. All countries surveyed after Spain.45 Research existing legal ties, including marriage and has indicated that trans people are gener- adoption, are unaffected, as the individual’s ally reporting positive changes, especially national identity number remains the same. in areas of education, healthcare, employ- Further, it is illegal to include any mention ment, safety, and civil rights.46 It has also of a change in the new documents so the in- been reported that access to voting without dividual’s right to privacy is also protected. discrimination has meant many trans indi- The Ley also includes a number of other viduals are now able to safely cast their bal- benefits regarded as important for bringing lots for the first time.47 greater equality and ease of access—there is no cost to apply, the process takes only a Conclusion: Does Gender Matter? The couple of weeks, and the paperwork is rel- Future of Gender Identity Recognition atively simple, reducing bureaucratic bur- The Yogyakarta Principles have become den. It also includes a provision allowing a global standard by which many govern- for access to trans-related health care (and ments are reshaping their legal understand- not only gender recognition surgeries) to ings of gender identity recognition. The be covered at full cost under the national newly released Yogyakarta Plus 10 includes Mandatory Medical Plan. In 2015, a subsid- Principle 31, which states that adherents iary healthcare policy and practical guide- shall “Ensure that official identity docu- lines on trans specific healthcare were also ments only include personal information adopted with the goal of facilitating access that is relevant, reasonable, and necessary and quality. as required by the law for a legitimate pur- Another element of the Ley that has pose, and thereby end the registration of been applauded by many in the trans com- the sex and gender of the person in identity munity is the consideration for minors documents such as birth certificates, identi- to also be able to access a change in their fication cards, passports and driver licenses, gender identity. Minors under the age and as part of their legal personality.”48 of 18 must follow the same procedure as Along this line, many have argued that the adults with the requirement that minors legal recording of gender should become have a children’s lawyer and make requests a thing of the past, especially in situations through a legal representative. The Ley where such information is neither relevant contains further provisions that even if the nor necessary.49,50 Christopher Hutton has legal representative of the minor denies ap- argued that “If legal sex follows self-defini- proval, the child may still make a claim to be tion in terms of gender identity and is fully approved by a judge. In 2013, a six-year-old decoupled from marital or parental status, girl named Lulu made headlines when she medical intervention, and social pressure to became the youngest person at that time to conform, then it is on the verge of disap- legally change their gender.44 pearing as a legal status.” Gender, it seems, In addition to becoming the global gold may be on the brink of no longer mattering, standard for gender recognition identity at least in terms of official records.

Spring 2018, Volume VII | 11 It should be remembered that gender That said, there remain powerful argu- has not always been a marker of official legal ments as to why gender should continue to identity. As Hutton has also noted, matter. As Scott has noted, Legal sex has no explicit foundation Categories that may have begun as in statute or case law. The registration the artificial inventions of cadastral regimes that arose in the nineteenth surveyors, census takers, judges, or century for births, marriages and police officers can end by becoming deaths, the introduction of the pass- categories that organize people’s daily port and other forms of state-spon- experience precisely because they are sored identity, erected a scaffold for embedded in state-created institu- the creation of legal sex, without ex- tions that structure that experience.56 plicitly setting out its biomedical, so- ciopolitical and legal basis.”52 This embeddedness in daily life means that the category of gender still matters AJ Neuman Wipfler has made similar for many and in many ways. Arguments in arguments, noting that the categories of favor of retaining gender as a marker of of- data recorded on birth certificates in the ficial identity include that it is necessary United States “have changed no fewer than to record discrimination, especially against twelve times since their inception as iden- gender minorities; gender is often a gate- tification documents in 1900.”53 One argu- keeper to other rights—such as marriage, ment for the elimination of sex/gender as adoption, affirmative action, admission to an officially registered category, therefore, single-sex social groups and institutions, is precisely the fact that it is a relatively etc.; the vast majority of individuals do still recent category of identification. That said, identify as male or female, so taking away there are also arguments to be made that this marker is a case of minority rights although a recent practice, the registration encroaching on the rights of the majority; of sex does matter, as it has come to be a and, an argument put forward by many in defining characteristic of contemporary the trans community itself, many people life and one on which a number of social have fought for a long time to have their rights, responsibilities, and privileges have change in gender recognized, thus simply come to be predicated. removing gender as a marker undermines There is a growing movement to com- the decades of hard work that went into pletely eliminate, if not downright abolish, their ability to be recognized in the first gender as a marker of official identity.54,55 place. Reasons for such elimination include that The future of gender identity recogni- gender is not something that should be tion laws will be interesting to watch, es- regulated, monitored, or controlled by any pecially as the world becomes increasingly external authority; that there is often im- globalized and questions of inter-state legal precision of such registration in capturing compatibility continue to be foregrounded. the “truth” of lived daily experiences; that Additionally, issues related to refugees, other supposedly “foundational” indica- migrants, immigrants, tourists, and others tors—such as and —are who travel and live outside of their home rarely recorded on most documents in jurisdictions will no doubt continue to raise most countries; and that the registration questions of the inter-state compatibility of such information can lead to continued of global gender recognition. Further, the and further discrimination of individuals role of intersex individuals and activists who do not fit neatly into the highly limited will no doubt also play a role in the future identification options available on official of global gender identity recognition. Fi- documentation. nally, the continued push by international

12 | LGBTQ Policy Journal organizations such as the United Nations, World Health Organization, and others will End Notes also help to keep questions of legal gender 1 David Brown, “Making room for Sexual Orientation identity recognition on the agendas of many and Gender Identity in International Human Rights countries for some time to come. As Neu- Law: An introduction to the Yogyakarta Principles,” Michigan Journal of International Law 31, no. 4 (2010): man Wipfler has noted, “Whatever solution 822-844, https://repository.law.umich.edu/mjil/vol31/ the trans rights movement pursues must ul- iss4/3/. timately address two somewhat conflicting 2 Yogyakarta Principles, 2017, http://www. needs: the need for government recognition yogyakartaprinciples.org/. 3 and substantiation of gender identity and World Professional Association for Transgender Health (WPATH), “WPATH Identity Recognition the need to be free from government pre- Statement,” http://www.wpath.org. scription of gender identity.”57 Regardless 4 United Nations Human Rights Committee of how, and when, gender identity recog- (UNHRC), “Consideration of Reports Submitted nition laws are implemented, there seems by States Parties Under Article 40 of the Covenant: little doubt that the future belongs to an Concluding Observations of the Human Rights Committee,” UN Doc. CCPR/C/IRL/CO/3, report expanded understanding of gender and in- by the UNHRC, New York, 30 July 2008, https:// creased recognition of those who fall out- www.ecoi.net/en/file/local/1196648/1227_1226587130_ side the imposed heteronormative gender irelconclobs.pdf. 5 binary. Office of the High Commissioner for Human Rights, “Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Acknowledgments Sexual Orientation and Gender Identity,” UN Doc. The reflection developed drew on data A/HRC/19/41, report of the United Nations High collected in the frame of the European Re- Commissioner for Human Rights and reports of the search Council funded project TRANSRI- Office of the High Commissioner and the Secretary- General, New York, 17 November 2011, paragraph 84, GHTS: Gender citizenship and sexual rights https://documents-dds-ny.un.org/doc/UNDOC/GEN/ in Europe: Transgender lives in transna- G11/170/75/PDF/G1117075.pdf. tional perspective. The project reflects only 6 United Nations Development Programme (UNDP), the views of the author, and the European “Discussion Paper: Transgender Health and Human Union cannot be held responsible for any Rights,” report from UNDP HIV, Health and Development Group (New York, 2013), 28, http:// use which may be made of the information www.undp.org/content/dam/undp/library/HIV-AIDS/ contained therein. Governance%20of%20HIV%20Responses/Trans%20 Health%20&%20Human%20Rights.pdf. 7 Funding Bianca Soll et al. “Gender Incongruence: A The research leading to these results has re- Comparative Study Using ICD-10 and DSM-5 Diagnostic Criteria,” Revista Brasileira de Psiquiatria, ceived funding from the European Research in press, epub 02 October 2017, available from Council under the European Union's Sev- http://www.scielo.br/scielo.php?script=sci_ enth Framework Programme (FP7/2007- arttext&pid=S1516-44462017005017104. 8 2013) / ERC grant agreement n° 615594. Zorica Mršević, “Comparative Change in the Legal Status of Transgender Persons,” Law & Politics 14, no. 1 (2016): 115-132; 118-119, http://casopisi.junis.ni.ac.rs/ index.php/FULawPol/article/view/1765. 9 M. Dru Levasseur, “Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to ,” Vermont Law Review 39: 943-1004; 946. http://lawreview.vermontlaw.edu/wp-content/ uploads/2015/05/39-4-06_Levasseur.pdf. 10 European Commission, “Discrimination in the EU in 2015,” European Union, 2015, https://ec.europa. eu/commfrontoffice/publicopinion/index.cfm/ ResultDoc/download/DocumentKy/68005. 11 The term “trans” will be used throughout this paper

Spring 2018, Volume VII | 13 as an imperfect shorthand to refer to individuals who It: The UK Gender Recognition Act 2004,” The fall outside of the hegemonic heteronormative gender British Journal of Politics & International Relations binary, including, but limited to, those who identify as 10 (2008): 328-345, http://onlinelibrary.wiley.com/ transgender, , genderqueer, third gender, doi/10.1111/j.1467-856X.2007.00293.x/abstract. or gender nonbinary, among many other terms. Ralph Sandland, “ and the Gender 12 Christine Goodwin v. The United Kingdom, Recognition Act 2004,” Feminist Legal Studies 13, Application no. 28957/95, European Court of Human no. 1 (2005): 43-66, https://link.springer.com/ Rights, 11 July 2002, https://www.unionedirittiumani. article/10.1007/s10691-005-1456-3. it/wp-content/uploads/2012/07/CASE-OF- Andrew N. Sharpe, “Endless Sex: The Gender CHRISTINE-GOODWIN-v.-THE-UNITED- Recognition Act 2004 and the Persistence of a Legal KINGDOM.pdf. Category,” Feminist Legal Studies 15, no. 1 (2007): 13 European Commission, Discrimination in the EU 57-84, https://link.springer.com/article/10.1007/ in 2015.” s10691-006-9042-x. 14 Pew Research Center, “2017 Pew Research Tarynn M. Witten and Stephen Whittle, Center’s American Trends Panel,” 2017, http://assets. “TransPanthers: The Greying of Transgender pewresearch.org/wp-content/uploads/sites/ and the Law,” Deakin Law Review 9, no. 2 12/2017/11/07123544/transgender-topline-final.pdf. (2004): 503-522, https://www.researchgate.net/ 15 Marjolein Van den Brink, Philipp Reufs, and Jet publication/27399964_TransPanthers_the_greying_ Tigchelaar, “Out of the Box? Domestic and Private of_transgender_and_the_law. International Aspects of Gender Registration: 19 House of Commons Women and Equalities A Comparative Analysis of Germany and the Committee, “Transgender Equality: First Report of Netherlands,” European Journal of Law Reform 17, no. Session 2015-2016,” HC390, London: The Stationary 2 (2015): 282-293; 282, https://dspace.library.uu.nl/ Office Limited, https://publications.parliament.uk/pa/ bitstream/handle/1874/321982/Out_of_the_Box. cm201516/cmselect/cmwomeq/390/390.pdf. pdf?sequence=1. 20 Sharon Cowan, “‘Gender is No Substitute for Sex’: 16 Although this paper will generally use the term A Comparative Human Rights Analysis of the Legal “change” to refer to alterations in official gender Regulation of ,” Feminist Legal Studies identity, it is important to note the significance of 13, no. 1 (2005): 67-96, https://link.springer.com/ terminology. Whereas the term “change” implies article/10.1007/s10691-005-1457-2. a willful alteration from one identity to another, Jeffreys, “They Know it When They See It.” the term “correct” implies a rectification of status Sandland, “Feminism and the Gender Recognition to represent an identity that was always present. Act 2004.” Although some trans individuals prefer the term 21 Gender Recognition Act 2004, preamble, article 1. “correction” that concept has generally been used 22 Cowan “‘Gender is No Substitute for Sex.’” with specific reference to the intersex community Sally Hines, “Social/Cultural Change and Transgender whereas the term “change” has been more generally Citizenship,” Sociological Research Online 11, no. 4, used for the broader trans community. Special Edition on Changing Femininities, Changing 17 Gender Recognition Act 2004, Parliament of the Masculinities (2007), http://eprint.ncl.ac.uk/pub_ United Kingdom, 2004 c. 7, http://www.legislation. details2.aspx?pub_id=47826. gov.uk/ukpga/2004/7/contents. Jeffreys, “They Know it When They See It.” 18 Peter Charlish, “Gender Recognition Act 2004: Sharpe, “Endless Sex.” Transsexuals in Sport: A Level Playing Field?,” Witten and Whittle, “TransPanthers.” International Sports Law Review 5, no. 2 (2005): 38-42, 23 Ralph Sandland has actually argued the opposite, http://shura.shu.ac.uk/705/1/fulltext.pdf. stating that “The denial of the complexity of social Emily Grabham, “Governing Permanence: Trans reality on the part of the Government has punitive Subjects, Time, and the Gender Recognition consequences for some, but might allow real Act,” Social & Legal Studies 19, no. 1 (2010): freedom, a lived reality of the deconstruction of 107-126, http://journals.sagepub.com/doi/ the dyads of male/male, conformity/deviance, for abs/10.1177/0964663909346200. others. In ontological terms, the G.R.A. marks a Sally Hines, 2010. “A Pathway to ?: new openness of texture, a new fluidity, to the legal Human Rights, Citizenship and the Politics of construction of gender.” Sandland, “Feminism and Transgender,” Contemporary Politics 15, no. 1 the Gender Recognition Act 2004, 55. (2010): 87-102, https://www.tandfonline.com/doi/ 24 Hines, “Social/Cultural Change and Transgender abs/10.1080/13569770802674238. Citizenship.” Sally Hines, Gender Diversity, Recognition and 25 Sandland, “Feminism and the Gender Recognition Citizenship: Towards a Politics of Difference, (New Act 2004,” 45. York: Springer, 2013), https://www.palgrave.com/gp/ 26 Charlish, “Gender Recognition Act 2004.” book/9780230271890. 27 Grabham, “Governing Permanence,” 116. Sheila Jeffreys, “They Know it When They See 28 Richard Kohler, and Julia Ehrt, “Legal

14 | LGBTQ Policy Journal Gender Recognition in Europe,” report colhr36§ion=31. prepared for , 2016, 23. 40 Christopher Hutton, “Legal Sex, Self- Last updated 13 February 2017, https://tgeu.org/ Classification and Gender Self-Determination,”Law toolkit_legal_gender_recognition_in_europe/. and Humanities 11, no. 1 (2017): 64-81; 71, http://www. 29 It should be noted that the GRA is currently under tandfonline.com/doi/full/10.1080/17521483.2017.132 review. Revisions include removing the need for 0037. a medical or psychiatric diagnosis, removing the 41 Yogyakarta Principles. requirement to prove that one has lived in their 42 An English translation of the law can be accessed preferred gender for at least two years, lowering the at https://globaltransaction.files.wordpress. minimum age of applicants from 18 to 16, and allowing com/2012/05/argentina-gender-identity-law.pdf. nonbinary individuals to record their gender as “X.” 43 Kohler and Ehrt, “Legal Gender Recognition in At the time of writing, it is unclear if or when these Europe,” 66. revisions might be approved or come into effect. 44 James Nichols, “Argentina Grants Lulu, 6 30 Van den Brink, Reufs, and Tigchelaar, “Out of the Year-Old Transgender Child, Female ID Card,” Box?,” 292. Huffington Post, 2 February 2016, https://www. 31 Joel E. Oestreich, “Sexual Orientation and Gender huffingtonpost.com/2013/10/10/argentina-child- Identity in Nepal: Rights Promotion Through UN transgender_n_4077466.html. Development Assistance,” Journal of Human Rights 45 J. Lester Feder, Jeremy Singer-Vine, and Ben King, 17, no. 2 (2017): 265-279, http://www.tandfonline. “This is How 23 Countries Feel about Transgender com/doi/abs/10.1080/14754835.2017.1357028. Rights,” BuzzFeed News, 29 December 2016, https:// 32 Michael Bochenek and Kyle Knight, “Establishing www.buzzfeed.com/lesterfeder/this-is-how-23- a Third Gender Category in Nepal: Process and countries-feel-about-transgender-rights. Prognosis,” Emory International Law Review 26 46 Ines Aristegui et al. “Impact of the Gender no. 1 (2012): 11-41; 15, http://law.emory.edu/eilr/ Identity Law in Argentinian Transgender Women,” content/volume-26/issue-1/recent-developments/ International Journal of Transgenderism 18, no. 4 establishing-a-third-gender-in-nepal.html. (2017): 446-456, 33 Sean Dickson and Steve Sanders, “India, http://www.tandfonline.com/doi/abs/10.1080/155327 Nepal, and Pakistan: A Unique South Asian 39.2017.1314796. Constitutional Discourse on Sexual Orientation 47 Telam, “Por Primera Vez, las Personas Trans and Gender Identity,” in Social Difference and Votaron con un Documento que Refleja su Identidad Constitutionalism in Pan-Asia, ed. Susan H. de Genero,” Telam, 11 August 2013, http://www. Williams (Cambridge: Cambridge University telam.com.ar/notas/201308/28417-votar-con-el- Press, 2014), 335, https://www.cambridge.org/core/ documento-que-refleja-la-identidad-de-genero.html. books/social-difference-and-constitutionalism- 48 Yogyakarta Principles. in-pan-asia/india-nepal-and-pakistan-a- 49 Anna James Neuman Wipfler, “Identity Crisis: The unique-south-asian-constitutional-discourse- Limitations of Expanding Government Recognition on-sexual-orientation-and-gender-identity/ of Gender Identity and the Possibility of Genderless FF433A133578320C9A4B755D52C88AE2. Identity Documents,” Harvard Journal of Law and 34 Pant v. Nepal, Writ No. 917 of the Year 2064 BS Gender 39 (2016): 491-554, https://papers.ssrn.com/ (2007 AD), Supreme Court of Nepal, 21 December abstract=2763740. 2007. Translated in National Judicial Academy Law 50 Susan Stryker, “Undoing Sex Classification Journal 2 (2008): 261-286; 262. Can Provide Justice,” New York Times, 35 Oestreich, “Sexual Orientation and Gender 19 October 2014, https://www.nytimes. Identity in Nepal.”st com/roomfordebate/2014/10/19/is- 36 Bochenek and Knight, “Establishing a Third checking-the-sex-box-necessary/ Gender Category in Nepal,” 12. undoing-sex-classification-can-provide-justice. 37 Paul Boyce and Daniel Coyle, “Development, 51 Hutton, “Legal Sex, Self-Classification and Gender Discourse, and Law: Transgender and Same-Sex Self-Determination,” 78. Sexualities in Nepal,” Institute of Development 52 Hutton, “Legal Sex, Self-Classification and Evidence Report 13 (2013): 4, http://opendocs. Self-Determination,” 67. ids.ac.uk/opendocs/bitstream/123456789/2839/1/ 53 Neuman Wipfler, “Identity Crisis.” ER13%20Final%20Onine.pdf. 54 Neuman Wipfler, “Identity Crisis.” 38 Kohler and Ehrt, “Legal Gender Recognition in 55 Stryker, “Undoing Sex Classification.” Europe.” 56 James C. Scott, Seeing Like a State: How Certain 39 Franklin H. Romeo, “Beyond a Medical Model: Schemes to Improve the Human Condition Have Failed Advocating for a New Conception of Gender (New Haven: Yale University Press 1998) 82-83, Identity in the Law,” Columbia Human Rights Law https://libcom.org/files/Seeing%20Like%20a%20 Review 36 (2005): 713-753; 739, http://heinonline. State%20-%20James%20C.%20Scott.pdf. org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ 57Neuman Wipfler, “Identity Crisis,” 497.

Spring 2018, Volume VII | 15

Discrimination against Sexual Minorities in Education and Housing: Evidence from Two Field Experiments in Serbia

Dominik Koehler World Bank December 2017

Abstract Discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) people is widespread, and LGBTI exclusion from economic markets, vital services, and political spaces is entrenched. This is not just a personal problem, it is a development challenge, not only because discrimination is inherently unjust, but also because “there are substantial costs—social, political, and economic—to not addressing the exclusion of entire groups of people.”1 Understanding the barriers LGBTI people face in accessing markets, services, and spaces is important for designing more inclusive policies and programs. This study documents, for the first time, discrimination against LGBTI people in access to education and housing in Serbia, using evidence from field experiments. In Serbia, “feminine boys,” widely perceived as being gay, were at least three times more likely to be refused enrollment in primary schools (15 percent) compared to boys not perceived to be feminine (5 percent). Eighteen percent of same-sex couples were refused apartment rentals by private landlords, while no heterosexual couples were. The research contributes to the growing body of evidence on the economic dimensions of LGBTI discrimination.

Bio This study is part of a large World Bank LGBTI data collection initiative in the Western Balkans led by Dominik Koehler, Georgia Harley, Nicholas Menzies, and Runyararo Gladys Senderayi. IPSOS Strategic Marketing conducted the field experiments under the leader- ship of Svetlana Logar. This project could not have been possible without the support from Andrew Park and Andrew Flores from the Williams Institute at UCLA, as well as Dragana Todorovic and Amarildo Fecanji from the LGBTI Equal Rights Association for Western Balkans and Turkey.

Background and Study Objectives Lesbian, gay, bisexual, transgender, and services, and spaces becomes more con- intersex (LGBTI) people are often vic- strained, jobs are harder to find; education tims of violence, inequality, and discrim- and health services are limited; and polit- ination. Discrimination on the grounds of ical and public engagement is riskier. The sexual orientation, gender identity (SOGI), effects of discrimination push many LGBTI and sex characteristics has wide-ranging people into poverty, and it is therefore effects on LGBTI people and the societ- likely that they are overrepresented among ies they live in. When access to markets, the poor.2

Spring 2018, Volume VII | 17 Collecting data on the experiences general welfare survey, the Survey on of LGBTI people is challenging, and, as Income and Living Conditions (SILC), a result, robust data that quantifies and to LGBTI people in Serbia. The adap- details the effects of discrimination is tation enables the income distribution missing in most countries, including Ser- and social inclusion of LGBTI people bia. This is primarily because many LGBTI to be compared to that of the general people, especially but not only those who population in Serbia. live in developing countries or in countries The current report complements the SILC where discrimination is prevalent, choose survey by providing additional qualitative to stay under the radar. They hide their data about the challenges LGBTI people LGBTI identity out of fear: fear of rejection face in two key areas of life: education and and exclusion; fear of harassment; fear of housing. Cumulatively, these studies form discrimination; and fear of physical vio- one of the largest LGBTI data sets outside lence. Therefore, knowledge about the lived of the OECD countries. The multifaceted experiences of LGBTI people is limited, es- nature of the research initiative helps to pecially in contexts where discrimination better understand the development out- and exclusion are prevalent. In Serbia, like comes for LGBTI people as individuals, in in many other developing countries, reliable the economy, and in society. and robust data on the social and economic Experimental studies have provided challenges LGBTI people face is not avail- important insights into discrimination able, making policy interventions difficult. based on race, sex, ethnicity, and reli- The World Bank is committed to helping to gious affiliation. These studies have cov- address this evidence gap by undertaking ered a wide range of areas such as access to research and collecting rigorous data. Gath- employment,4 housing,5 and credit and con- ering data on the challenges LGBTI people sumer markets.6 Experimental studies have face is an important first step towards de- also been used to examine discrimination veloping sustainable solutions that respond based on sexual orientation, but focusing to their challenges and needs. more narrowly on access to the labor mar- This report is part of a broader World ket in developed countries.7 Experimental Bank research initiative: “Understand- studies offer a simple and effective way of ing the Socio-Economic Dimensions of producing reliable data, especially among LGBTI Exclusion in the Western Bal- less conspicuous and hard-to-reach popula- kans.” In addition to this report, two large- tions such as LGBTI people. The two exper- scale surveys (reports forthcoming) were iments outlined in this report build on the conducted, reaching over 5,500 LGBTI peo- prior body of work by looking specifically at ple in the region. discrimination based on sexual orientation 1. The first survey adapts the 2012 Euro- in accessing compulsory primary school pean Union Fundamental Rights Agen- education and the private rental housing cy’s Survey of LGBT people in the EU market. These two areas were chosen as and Croatia and applies that method- they represent important steps in the life ology in Albania, Bosnia & Herzegov- cycle of exclusion faced by LGBTI people, ina, Croatia, Kosovo, FYR Macedonia, and in Serbia they were amenable to the Montenegro, Serbia, and Slovenia. That experimental methodology. For the first adaptation enables generalizable com- time, these experiments quantify the ex- parisons of the experiences of LGBTI tent of discrimination LGBTI people face in people in the EU Member States with accessing education and housing in Serbia: those of LGBTI people in the Western to date, data in both areas has been anec- Balkans. dotal only. A better understanding of this 2. The second survey adapts Serbia’s discrimination can help to inform policies

18 | LGBTQ Policy Journal and programs that address the issue, such in Serbia means that the open declaration as introducing, or adjusting, laws and reg- of SOGI status is quite unusual.11 This limits ulations, launching public awareness cam- the range of experimental scenarios which paigns, and providing systematic training. would allow collection of data in situations From a legal and policy perspective, that are natural enough to guarantee data Serbia has made good progress in en- validity, whilst securing the safety and an- suring the protection of the rights of onymity of all participants. This study fo- LGBTI people, but in practice, discrim- cuses on gay and lesbian people, as they are ination against and exclusion of LGBTI identities an average Serbian citizen is more people remain a problem.8 The European familiar with as compared to transgender Commission confirmed in its 2016 Progress or intersex people.14 Data were collected via Report, that “the legal and institutional telephone interviews to protect the iden- framework for the respect of fundamental tity and security of the participants and to rights is in place,” but goes on highlight the eliminate the potential influence of face-to- need for sustained efforts to improve the face contact on the research outcome. This situation of these vulnerable populations.9 significantly limited the scenarios, services, Many LGBTI people in Serbia report experi- and markets that could be analyzed in this encing discrimination in public and private type of study. For example, social welfare services and economic opportunity, as well centers, financial institutions, and public as not feeling safe in public spaces.10 How- health institutions generally required face- ever, there is a lack of robust, quantitative to-face contact and were therefore not suit- data that clearly shows differential treat- able. Replicating the labor market studies ment between sexual and gender minori- used to show gay and lesbian discrimination ties, and straight and cisgender11 citizens. in other countries was not viable given the The two experiments discussed in this small number of formal job announcements report apply experimental methods to in Serbia. Education and housing were se- collect reliable information that allows lected as they focus on two key areas that comparisons of outcomes among lesbian impact the welfare of citizens and data col- and gay people and their heterosexual lection under natural conditions was possi- counterparts. This is done in real-life set- ble without putting participants at risk. tings by using the mystery shopper tech- nique.12 The mystery shopper technique 1. Access to Primary School Education involves the same actors playing different for Students Perceived to be Gay roles (in this case, mothers of feminine boys Evidence from many countries illustrates and non-feminine boys, and lesbian, gay, and that LGBTI students face discrimina- straight couples) and approaching the same tion and bullying from teachers, school service providers. The differences in the re- staff, and their peers.15 A 2014 UNICEF actions of the service providers (in this case, study showed that homophobic bullying schools and landlords) are then measured has negative impacts on the students’ at- and attributed to the different identities of tendance and can increase the likelihood of the actors, thus isolating the discrimination. alcohol consumption, depression, and even attempted suicide.16 This in turn leads to Choosing the Research Areas and lower learning outcomes and higher drop Methods out or expulsion rates. Poor performance in The data collection method, the markets, school reduces opportunities for higher ed- services, and spaces considered, and the ucation and access to quality employment. scenarios portrayed were guided by the need Addressing discrimination against LGBTI to address specific challenges in Serbia. students is particularly important consider- Widespread stigma against LGBTI people ing Sustainable Development Goal 4, under

Spring 2018, Volume VII | 19 which Serbia (and all countries) has com- the potential student which could af- mitted to ensuring inclusive and equitable fect the decision about his admission quality education for all. In Serbia, discrim- to school; ination based on sexual orientation, gender 2. The mother’s statement about the fem- identity, or being intersex in schools has not ininity of her son is very clear and sup- been systematically researched. This exper- ported by a convincing argument as to iment, therefore, fills an important data gap why she is mentioning it at all; for policymakers, school leaders, and the 3. The conversation should gather infor- LGBTI community. mation that can be transformed into statistically comparable data.18 1.1 Methodology The scenario of the telephone conversa- Experimental Scenario tion for the control group was the same, The experimental scenario was designed except that the boy was not characterized to assess if the presence of perceived as feminine. femininity among 14-year-old boys had an impact on their chances to enroll in Sampling of Schools the seventh (7th) grade of public primary The experiment sampled primary schools schools in Serbia.17 In Serbian culture, men located in urban areas of municipali- and boys who are perceived to be feminine ties with at least five primary schools.19 are commonly assumed to be gay. In con- Smaller municipalities and rural areas were trast, masculine girls or women are not al- excluded because the experimental sce- ways directly perceived to be lesbian. The nario would become less realistic. Addi- inclusion of masculine girls, or any other tionally, municipalities with just one or two part of the LGBTI population that the Ser- schools were excluded because the school bian people are less familiar with, would not might have felt pressured to approve the only have reduced the naturalness of the enrollment of the feminine boy, given that experimental scenario but also complicated primary education is mandatory in Serbia the interpretation of the results. Notably, it until the completion of eighth grade. is irrelevant in the scenario whether the boy Out of all eligible schools, 184 were in question is gay—only that he is perceived selected from 37 municipalities using in the community to be gay, and may there- standard random selection procedures.20 fore be vulnerable to discrimination. Approximately the same number of schools The schools were contacted by six were selected from the three regions: Bel- members of the research team acting grade, Vojvodina, and Central Serbia. The as mothers looking to enroll their son schools were randomly assigned to treat- in a new school because the family was ment (feminine boy) and control group relocating for employment reasons. At (non-feminine boy) so that in each munici- the beginning of the interview, before the pality there was an equal number of schools school administrator has a chance to make contacted on behalf of the feminine boy and any statement about the availability of non-feminine boy. places, the mother mentions that the boy is “feminine,” and that his femininity is quite Measurement obvious, so she wants to draw the school’s Since the data was collected through attention to the fact. Primary schools are telephone conversations in natural con- obliged by the law to enroll students. The ditions, the transcripts of the conversa- telephone conversation was designed based tions were transformed to quantitative on three assumptions: measures. To ensure the robustness of 1. The femininity of the boy is the only the quantitative data, the evaluation of the obvious characteristic distinguishing outcomes was performed by three indepen-

20 | LGBTQ Policy Journal FEMININE BOYS NON-FEMININE BOYS Accepted without hesitation

3% 4% Accepted with 6% hesitation 11% 27% Not Clear 8% Refused with 25% hesitation 65% Refused without 51% hesitation Database: all schools, n=184

Figure 1: Acceptance and refusal of feminine and non-feminine boys

FEMININE BOYS NON-FEMININE BOYS

5% Accepted 15% Refused

Database: Cases with clear outcome (unclear cases omitted), n=172, 93% of schools, femi- 95% nine boys n=85 (92%), 85% non-feminine boys n=87 (95%)

Figure 2: Acceptance and refusal of feminine and non-feminine boys—simplified dent raters in accordance with the usual not achieved, i.e., decision is post- standards of evaluations of observations in poned until the mother and her son natural conditions.21 Raters were in no way can go to the school and meet the part of the experiment and did not have a school authorities face-to-face. position on LGBTI rights that could skew 4. Rejected, but with hesitation: the de- their assessment. Their attitudes towards cision was made either with hesitation LGBTI rights were checked in their inter- of the contacted person or only after views for the job. consultation with school staff. The outcomes were evaluated on a 5. Rejected without hesitation. five-point scale: 1. Accepted without hesitation or any ad- 1.2 Results ditional conditions. Feminine Boys Have More Limited Access to 2. Accepted, but with hesitation, or post- Primary Schools ponement: the decision was made ei- Feminine boys were three times more ther with hesitation of the contacted likely (14 percent) to be refused enroll- person or only after consultation with ment in public primary schools than school staff. non-feminine boys (4 percent). Most fem- 3. Unclear outcome: final decision was inine boys did not face direct refusal; of the

Spring 2018, Volume VII | 21 refusals, 78.6 percent (11 percent of all boys) came after some delay or hesitation on the Reasons for Rejections part of the school. None of the non-femi- Non-feminine boys were only refused nine boys were confronted with a refusal enrollment because the schools lacked preceded by hesitation; they were refused space for new students. Although the without hesitation and for strictly technical schools used the same argument to refuse reasons (schools at full capacity). Amongst the enrollment of feminine boys their re- the boys who were accepted, feminine boys sponses made it obvious that the reason faced significantly more hesitation in the for the refusal was in fact grounded in decision than the non-feminine boys. Out the boy’s perceived femininity. of the accepted feminine boys, 51 percent Our classes have 25-26 students. I were accepted with hesitation compared have talked to the class masters and to only 25 percent of non-feminine boys. they are not willing to accept new Enrollment of non-feminine boys was only students. There are other schools met with hesitation when the school per- with a smaller number of students… ceived the boy’s academic performance and So, I can’t make this possible. And an- discipline to be a potential problem. The other thing, we have aggressive sev- difference in the kinds of refusals and ac- enth graders and I’m afraid that this ceptances faced by the two different groups wouldn’t be a good environment for of boys reinforces the conclusion that femi- your son. You know that they always ninity is the reason for discrimination. look for a victim. And the victim is the Omitting the 7 percent of unclear cases one slightly different. You will surely (8 percent for feminine boys and 6 percent do better if you look for a school with for non-feminine boys) and combining all a smaller number of students… acceptances and all refusals clearly shows the discrimination against feminine boys— School administrators stress the their chances of being refused enrollment homophobic atmosphere among the are three times higher (figure 2).22 students and their inability to protect The chances of a non-feminine boy feminine boys from discrimination. See being accepted into a school without hesi- for example, some quotes below. tation are more than twice as high (72 per- Given that the child has such a pro- cent) as the chances for feminine boys (35 file, and the children of that age in percent; figure 3).33 our school are cruel, I would kindly

FEMININE BOYS NON-FEMININE BOYS

Accepted without 35% hesitation 28% Accepted with hesitation Database: Accepted boys only; n=155, 84% of 72% schools; feminine boys 65% n=72 (78%), non- feminine boys n=83 (90%)

Figure 3: Feminine and non-feminine boys accepted without hesitation

22 | LGBTQ Policy Journal ask you to try with another school. say this, but if you want to enroll your And don’t mention that your son is child in our school, you are welcome, feminine. You will immediately face and that’s all. a strong barrier. That’s what I would suggest. I know what our children are Even when the enrollment of a feminine like. They tolerate differences with boy was accepted, all school administra- lots of difficulties. They actually can’t tors stressed that they could not guaran- stand any differences. tee the boy’s safety. See for example: We have a lot of seventh graders What you told me is so general … of and they are very problematic … This course, the child has the right to be characteristic of your boy may be a enrolled. So, what you have told me problem, perhaps children wouldn’t about the child being feminine … react to it properly. We do have lots of If you are asking me for advice … I problems with seventh graders … And don’t know how visible this is on your our capacities are rather full… child… we can’t protect him from teasing and other similar things… But, Reasons for Hesitation in Enrollment of course, you can enroll him here, The study reveals that the boys’ perceived that’s your civil right. femininity is more problematic than low Each school can enroll one more academic performance or behavioral child at least, two per class, but I don’t problems. As shown above, considerably know what to tell you. It is your right more requests for enrollment of feminine to choose where you will enroll your boys than non-feminine boys were accepted child. I can’t refuse any child… But with hesitation. Analyses of the interview re- I can’t promise that other children cordings show that hesitation was in general won’t say anything, you must know due to the unwillingness of the schools to how cruel children are, especially at enroll students perceived as potential prob- that age, I can’t guarantee anything … lems. But perceptions of the potential prob- the child can be enrolled, of course … lems were strikingly different in the case of But don’t expect the impossible from feminine and non-feminine boys. us, alright? That’s what I can say, and While in the case of non-feminine you are entitled to enroll your child boys, hesitations were expressed through wherever you want. additional questions about the boys’ school achievement and discipline, in the 2. Access to Housing for Gay and Lesbian case of feminine boys they were related Couples to the boys’ femininity. See for example: Access to secure and affordable housing I don’t know what to tell you … well, is important for all people, but is a par- I’m not saying that it is a problem, the ticularly pressing issue for LGBTI peo- child is as he is … But before you make ple. Sexual and gender minorities are often the decision about the school, perhaps made to feel unwelcome by their families it would be advisable to consult pro- and forced to leave home early, increasing fessionals, to hear what they would their reliance on the private housing mar- say … I can’t tell you anything, you can ket. In many countries, sexual and gender enroll your child wherever you want, minorities are overrepresented in homeless in whichever school, that’s your right populations.24 Understanding LGBTI dis- as a parent. But if I were you, I would crimination in the housing market becomes first ask around, get informed, check especially important considering Sustain- out the classes, how the child would able Development Goal 11, which requires fit in, do you understand me? I had to Serbia (and all nations) to make cities and

Spring 2018, Volume VII | 23 human settlements inclusive, safe, resilient, 2. Statements about the couple’s sexual and sustainable. This experiment highlights orientation are very clear, but also con- the extent of discrimination in the private veyed in a relaxed/colloquial manner; rental housing market and is designed to in- 3. The conversation should gather infor- form future policies that allow LGBTI peo- mation that can be transformed into ple access to adequate, safe, and affordable statistically comparable data.25 housing. Sampling of Landlords Methodology A total of 160 landlords were contacted Experimental scenario based on their online advertisement of Couples contacted landlords via tele- apartments in four cities (Belgrade, Nis, phone to inquire about renting an apart- Novi Sad, and Kragujevac). Since there ment. All couples were 30 to 34 years old, were two treatment groups (lesbian cou- and both partners were employed with ple and gay couple) and two corresponding a stable income. They were interested in control groups (two heterosexual couples), renting apartments of approximately the landlords were randomly assigned to one of same size (one-bedroom apartments) and the treatment groups and the correspond- price. Couples only differed by their sexual ing control group. Eighty landlords were orientation. Each landlord was contacted assigned to the gay couple and the corre- twice, once by a same-sex couple (randomly sponding heterosexual couple, and 80 to assigned to be a gay or lesbian couple) and the lesbian couple and the corresponding once by a heterosexual couple. When a heterosexual couple. Since each landlord lesbian couple contacted the landlord, the was contacted twice, there were a total of female member of the heterosexual couple 320 observations. made the call as a control for any gender Measurement bias. The same applied to the gay couple, Since the data were collected through where the male member of the heterosexual telephone conversations in natural con- couple contacted the landlord. The scenario ditions, the qualitative data were trans- of the telephone conversation has three formed into quantitative outcomes. To basic assumptions: ensure the robustness of the quantitative 1. Sexual orientation is the only charac- data, evaluation transcripts were done by teristic distinguishing the couples; three independent raters in accordance

SAME-SEX COUPLES HETEROSEXUAL COUPLES Accepted without hesitation Accepted with 11% 1% 7% hesitation Refused with 8% hesitation Refused without hesitation Database: All observa- 74% 99% tions, 160 observations per treatment and control groups, 320 observations in total.

Figure 4: Acceptance and refusal of same-sex and heterosexual couples when seeking rental apartments

24 | LGBTQ Policy Journal LESBIAN COUPLES GAY COUPLES

Accepted 8% Refused 29%

Database: treatment groups only, 80 obser- vations per group, 160 71% observations in total. 92%

Figure 5: Acceptance and refusal of gay and lesbian couples when seeking rental apartments

GAY COUPLE HETEROSEXUAL COUPLE (CONTACT MALE) Accepted without hesitation 1% 12% Accepted with hesitation Database: accepted couples only; 100% of 99% heterosexual couples, 71% of gay couples 88%

Figure 6: Acceptance with hesitation—gay couples and heterosexual couples

with the usual standards of evaluations of observations in natural conditions.26 The 2.2 Results raters did not take part in the study, do not Same-sex couples face discrimination when identify as LGBTI, and did not have a posi- renting apartments tion on LGBTI rights that could skew their Almost one in five (18 percent) same-sex assessment. couples were refused rental of an apart- To evaluate the outcomes, a five-level ment by the landlord; none of the hetero- scale was used: sexual couples were. Same-sex couples also 1. Accepted without hesitation or with- faced significantly more hesitation (8 per- out additional conditions. cent) when accepted compared to their het- 2. Accepted, but with hesitation or erosexual counterparts (1 percent; figure 4).27 postponement. 3. Unclear outcome (final decision not Gay couples face more discrimination than clear). lesbian couples 4. Rejected, but with hesitation. Gay couples face a much higher likeli- 5. Rejected without hesitation. hood of being refused a rental apart-

Spring 2018, Volume VII | 25 GAY COUPLES 100% 79% Accepted 80% (male landlord) 64% 60% Accepted 36% (female landlord) 40% 21% Refused 20% (male landlord) 0% Refused (female landlord)

LESBIAN COUPLES Database: 86 male land- 100% 93% 92% lords—42 observations with gay couples and 44 with 80% lesbian couples; 74 Female 60% landlords—38 observations with gay couples and 36 with 40% lesbian couples. 7% 8% 20% 0% Figure 7: Acceptance and refusal of lesbian and gay couples by female and male landlords ment (29 percent) compared to their female landlords (figure 7).31 lesbian counterparts (8 percent; figure was Openly Expressed by 5).28 Many Landlords Gay couples also faced more hes- Analysis of the interview transcripts itation than heterosexual or lesbian shows open homophobia by landlords. couples. Of the gay couples accepted, 12 Once informed that the potential tenants percent were accepted with hesitation, were a gay or a lesbian couple, the landlords while only 1 percent of the corresponding reacted in one of two ways. heterosexual couples experienced such One group of landlords immediately hesitation (figure 6).29 The difference in the stated that they were not willing to rent the case of lesbian couples was smaller, and not apartment to a gay or lesbian couple: statistically significant: 7 percent of lesbian Two men, what do you mean a cou- couples were accepted with hesitation and 1 ple, what kind of couple? You mean percent of the corresponding heterosexual two men in emotional relationship? couples.30 Oh no, no! Goodbye. Oooooh, well, I have never rented Male landlords discriminate more against a flat to a male couple, or something gay couples than female landlords like that, they were always a young Male landlords rejected gay couples signifi- couple or married couple. I am sorry, cantly more often than lesbian couples. As but not me, not like that. much as 36 percent of male landlords re- Well I don’t know, I wouldn’t really fused gay couples, while only 7 percent re- want to. I have nothing against it, but fused lesbian couples.31 On the other hand, I don’t want to. female landlords rejected gay and lesbian What can I say, it is a problem. couples to the same extent. Male landlords (Could we see the apartment?) No. rejected lesbian couples at similar levels of Bye.

26 | LGBTQ Policy Journal The other group stressed the negative the applicability and efficacy of mystery reactions of other people—either their fam- shopping experiments in shining a light on ilies or neighbors in the building in which LGBTI discrimination and serves as a pilot the apartment was located—as a reason for for future studies. the refusal. However, experimental studies have My grandmother wouldn’t like it. their limitations, and further research is You know, we have children, so… you needed to understand the full extent of understand. LGBTI discrimination and exclusion in My son-in-law owns that apartment; Serbia and beyond. The difficulties faced I must ask him. Call me in half an hour, by LGBTI people on a daily basis are per- please. (Second call) Yes, I have asked vasive, numerous, and cross-cutting. The him, and he doesn’t approve. (And World Bank uses a life cycle approach to what are the reasons, what does he understand the full extent of discrimina- say?) He doesn’t want to, as simple as tion, and in turn, properly address these that, he didn’t say why that’s all. challenges; additional research that iden- I don’t know what to say, it’s not a tifies the challenges and their social, eco- problem for me, but it may be a prob- nomic, and mental effects on LGBTI people lem for the neighbours and other ten- is required. Discrimination and exclusion ants, I can’t agree to this. often begins in the family; LGBTI children Well, I don’t know, I have to check fear violence by parents, siblings, and ex- with my mother and then call you tended family members or are even kicked back. (Second call) Well, my mother out of their home at an early age. Data on doesn’t really approve. Goodbye. these early experiences of LGBTI children Well, I am not sure, I must ask my is extremely rare, but in order to fully un- husband and my children. Please call derstand the effects of being LGBTI, more me in the evening, I must talk with systematic research in this area is needed. them first … I have no problem with Further, some of the responses by that, but my husband is a bit conser- school authorities indicated that barriers vative. (Second call) The flat has been in accessing education are not the only rented, goodbye. ways that LGBTI discrimination man- ifests in schools. UNICEF has begun to 3. Conclusion develop methodologies to understand the Avenues for Further Research extent and the consequences of homopho- Collecting data on the experiences of bic bullying in schools. Similar research is LGBTI people can be challenging. This re- necessary to understand how LGBTI stu- port contributes to closing the LGBTI data dents can be supported to develop to their gap by using innovative approaches to mea- full potential in Serbian schools.33 sure LGBTI discrimination and exclusion. Following the life cycle approach, Although mystery shopping experiments finding employment and developing a are not new, their use in understanding career is a next critical step that enables and revealing LGBTI discrimination has the accumulation of income and wealth. been limited. Previous reports indicated Providing policy makers with robust and that LGBTI people face barriers in access- reliable data on the challenges LGBTI indi- ing education and housing in Serbia, but viduals face in finding employment, staying there was insufficient robust data to sup- employed, and progressing in their careers port this. This study is at the forefront of will be key to enable LGBTI people to live obtaining reliable and quantifiable data on life to their full potential. Related to this, the challenges LGB people face in access- other research topics should include access ing housing and education. It underlines to credit and banking facilities, insurance,

Spring 2018, Volume VII | 27 holding public office, and the accumulation in 2009 prohibits discrimination on the of assets. grounds of sexual orientation and gender Research on discrimination in a range identity, and the Anti-Discrimination Strat- of other services, markets, and spaces is egy makes clear that “the right to education also necessary. Because of discrimination must be effectively enjoyed without dis- experienced within the family, many LGBTI crimination on the grounds of sexual orien- people don’t have the informal safety net tation or gender identity.” The strategy also of family ties to rely upon at key stages in creates an obligation for schools to ensure the life cycle. Unemployment, illness, and a safe learning environment. The following retirement can therefore be particularly actions would be helpful in this regard. challenging for LGBTI people, and more 1. An effective complaints and report- research is needed to ensure they do not ing mechanism should be put into fall through the cracks at these stages of place to ensure that Serbian antidis- life. Data on elderly LGBTI people is essen- crimination laws are implemented tially nonexistent and highlights just one and adhered to. To this end, it is rec- of the many areas where further research ommended that the Protector of Citi- is needed. Other aspects of family life zens, Serbia’s Ombudsperson, assesses where LGBTI experience institutional and its reporting mechanisms to identify individual discrimination with economic potential barriers that prevent or dis- consequences include coverage of family courage LGBTI people from reporting health insurance and health care services, cases of discrimination. Together with so more robust data in this sphere would be the Ombudsperson, the Education welcome. Inspectorate in consultation with rel- Such further research should be de- evant stakeholders should specifically veloped in close consultation with the ensure that reporting mechanisms pro- LGBTI community. This helps to ensure vide students, parents, and teachers that the findings are applicable and relevant with safe ways to report cases, ensure to these communities. It is also more direct fair and transparent investigations, and and sustainable because it brings LGBTI offer meaningful solutions. people on board in a way that allows pol- 2. A comprehensive assessment should icymakers, development partners, donors, be conducted to identify and exam- and advocates to respond directly to their ine gaps in legislation and regula- needs and development challenges. For ex- tions and their implementation, as ample, existing research reveals that trans well as grievance mechanisms and and intersex people are the most vulnerable resources available to LGBTI people among LGBTI groups. However, they are when they experience discrimina- often overlooked in research projects, and tion. Specifically, a review of the in- specific efforts should be made to collect terpretation and application of school data that distinguishes and quantifies the regulations is recommended to iden- particular challenges they face. tify and examine implementation gaps in the education sector. Policy Considerations 3. School development plans should in- The experiments outlined in this study clude specific actions to create a re- reveal that more could be done to close spectful, safe, and supportive school the implementation gaps in Serbian an- environment for all students, with ti-discrimination law and policy, and to special attention to LGBTI students. support the implementation of the “2013- The Education Inspectorate should be 2018 Serbian Anti-Discrimination Strat- empowered to effectively monitor the egy.” An antidiscrimination law passed implementation of these actions and

28 | LGBTQ Policy Journal provide guidance where needed. Com- prehensive training of school authori- End Notes ties, teachers, and students should also 1 World Bank, Inclusion Matters: The Foundation for be carried out to support the establish- Shared Prosperity, (Washington, DC: World Bank, 2013), 2, https://openknowledge.worldbank.org/ ment of a safe and conducive school handle/10986/16195. environment for LGBTI students. 2 Lee Badgett, Laura Durso, and Alyssa 4. Greater advocacy against homo-, bi-, Schneebaum, “New Patterns of Poverty in the trans-, and intersex phobia also ap- Lesbian, Gay, and Bisexual Community,” Williams pears to be necessary. Discrimination Institute, 2013, https://williamsinstitute.law.ucla. edu/wp-content/uploads/LGB-Poverty-Update- based on sexual orientation is widely Jun-2013.pdf. accepted in Serbia, as was evidenced Dominik Koehler, “LGBTI People Are (Likely) by the open homophobia displayed by Over Represented in the Bottom 40%,” World landlords. Advocacy should include, Bank Group SOGI Task Force, 2015, http://blogs. but not be limited to, raising aware- worldbank.org/governance/lgbti-people-are-likely- over-represented-bottom-40. ness among the general public of the 3 Fundamental Rights Agency, “EU LGBT adverse effects of, and problems as- Survey Technical Report,” European Union sociated with, current discrimination Agency for Fundamental Rights, Vienna, against LGBTI people. 2012, http://fra.europa.eu/sites/default/files/ eu--survey-technical-report_en.pdf. Lastly, it is important to leverage exist- 4 Philip Oreopoulos, ‘‘Why Do Skilled Immigrants ing positive attitudes towards LGBTI Struggle in the Labor Market? A Field Experiment people in awareness-raising campaigns With Thirteen Thousand Resumes,” American and in policy considerations. Although Economic Journal: Economic Policy 3, no. 4 evidence from the study makes it clear that (2011): 148– 171, https://www.aeaweb.org/ articles?id=10.1257/pol.3.4.148. discrimination based on sexual orientation 5 Katrin Auspurg, Thomas Hinz, and Laura occurs in Serbia, and occurs frequently, Schmid, “Contexts and Conditions of Ethnic the variance in the responses also reveals Discrimination: Evidence From a Field Experiment that there is a degree of acceptance of in a German Housing Market,” Journal of LGBTI people. For example, 35 percent of Housing Economics 35 (2017): 26-36, https:// www.sciencedirect.com/science/article/pii/ the feminine-boys were accepted without S1051137717300037. hesitation, and 74 percent of same sex cou- 6 Devah Pager and Hana Shepherd, “The Sociology ples were also accepted without hesitation. of Discrimination: Racial Discrimination in Ideally, there should be no discrimination Employment, Housing, Credit, and Consumer at all, but the responses suggest that there Markets,” Annual Review of Sociology 34 (2008): 181-209, http://www.annualreviews.org/doi/ are those who do not discriminate against abs/10.1146/annurev.soc.33.040406.131740. LGBTI people. These positive attitudes 7 András Tilcsik, “Pride and : Employment should be harnessed as an opportunity to Discrimination against Openly in the influence the attitudes of others. Correctly United States,” American Journal of Sociology 117, no. 2 (2011): 586-626, https://www.ncbi.nlm.nih. and consistently implementing policies gov/pubmed/22268247. and laws that forbid discrimination based 8 United Nations Development Programme on sexual orientation can also help to raise (UNDP), “Being LGBTI in Eastern Europe: Serbia awareness and change attitudes. Country Report,” UNDP, 2017, http://www.eurasia. undp.org/content/dam/rbec/docs/undp-rbec-blee- SERBIA%20.pdf. 9 European Commission, “Serbia 2016 Report,” Brussels, 2016, 3, https://ec.europa.eu/ neighbourhood-enlargement/sites/near/files/pdf/ key_documents/2016/20161109_report_serbia.pdf. 10 For the full World Bank study, please go to: UNDP, “Being LGBTI in Eastern Europe.” 11 refers to people whose identity and http://documents.worldbank.org/curated/ gender corresponds with their birth sex, i.e., who en/161011522071811826/ are not transgender.

Spring 2018, Volume VII | 29 12 Martijn Hesselink and Ton van der Wiele, The Palette Fund, 2012, https://williamsinstitute. “Mystery Shopping: In-Depth Measurement law.ucla.edu/research/safe-schools-and-youth/ of Customer Satisfaction,” 2011, http://www. serving-our-youth-july-2012/. mvmgroup.rs/wp-content/uploads/2011/04/ 25 See the Annex for a fuller description of the Importance-of-mistery-shopping.pdf. scenario. 13 For example, in the SILC survey, (World 26 Kilem Gwet, Handbook of Inter-Rater Realiability. Bank forthcoming), only 17 percent of LGBTI 27 Pearson Chi-Square = 41.63, df = 3, p < 0.001. respondents stated that they were open about their 28 Pearson Chi-Square = 12.172, df = 1, p < 0.001 . sexual orientation at work in the last five years. 29 Gay and corresponding heterosexual group: 14 For example, qualitative survey focus groups in Pearson Chi-Square = 7.36, df = 1, p < 0.01. Belgrade, Nis, and Novi Sad showed that in the 30 Lesbian and corresponding heterosexual group: LGBT, most of the participants were Pearson Chi-Square = 3.11, df = 1, p = 0.08. familiar only with the meaning of the letters L 31 Pearson Chi-Square = 2.36, df = 1, p = 0.001. (lesbian) and G (gay). The result was confirmed in 32 In spite of the fact that the difference in the quantitative survey, showing that majority of percentage of refusals of gay and lesbian couples the people in Serbia relate LGBT population to gay, might seem to be different, the statistical test lesbian, and bisexual people, while the awareness shows that difference is not systematic. Pearson of transgender and intersex people is quite low. Chi-Square = 10.84, df = 1, p = 0.12. National Democratic Institute (NDI), “LGBTI 33 UNESCO, “From Insult to Inclusion.” Public Opinion Poll: Western Balkans,” 2015, 34 The Government of the Republic of Serbia, “Anti- https://www.ndi.org/LGBTI_Balkans_poll. Discrimination Strategy 2013-2018” (unofficial 15 UNESCO, “From Insult to Inclusion: Asia-Pacific translation), 44, https://rm.coe.int/16801e8db9. Report on Bullying, Violence and Discrimination 35 “Specifically ensure protection of the right of children on the Basis of Sexual Orientation and Gender and youth to education in a safe environment, without Identity,” Bangkok, 2015, http://unesdoc.unesco. violence, harassment, or other forms of org/images/0023/002354/235414e.pdf. discriminatory or degrading treatment based on sexual 16 Mahidol University, Plan International orientation or gender identity.” Government of the Thailand, and UNESCO Bangkok Office, “Bullying Republic of Serbia, “Anti-Discrimination Strategy,” Targeting Secondary School Students Who Are 47. or Are Perceived to Be Transgender or Same-Sex Attracted: Types, Prevalence, Impact, Motivation and Preventive Measures in 5 Provinces of Thailand,” Bangkok, 2014, http://unesdoc.unesco. org/images/0022/002275/227518e.pdf. 17 A detailed description of the methodology can be found in Annex, available upon request. 18 Telephone conversations included in Annex, available upon request 19 Based on the definition by the Serbian Government. For further details see Annex, available upon request. 20 The results did not vary systematically depending on geographic region, municipality size (expressed by the number of primary schools), or school location (on the outskirts or in the town center); hence these variables are not reported. 21 For example: Kilem Gwet, Handbook of Inter- Rater Reliability: The Definitive Guide to Measuring the Extent of Agreement Among Multiple Raters, 4th ed., (Gaithersburg: Advanced Analytics, LLC, 2014), http://www.agreestat.com/book4/. 22 Pearson Chi-Square = 5.52, df = 1, p < 0.05. 23 Pearson Chi-Square = 21.97, df = 1, p < 0.001. 24 Laura Durso and Gary Gates, “Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual and Who Are Homeless or At Risk of Becoming Homeless,” , The Williams Institute with True Colors Fund and

30 | LGBTQ Policy Journal Generating Real Social Inclusion: Work and Identity Politics in the Trans and Travesti Rights Movement in Argentina

Isabel Cruz

Abstract Argentina has emerged as a leader among trans rights movements around the globe. Their recent focus on work as an aspect of trans rights is a unique strategy in the context of a global movement centered around health and identity. This paper seeks to explore the motivations behind the movement’s campaign for the Trans Labor Quota Law. Using qual- itative methods, the article explores the historical construction of the movement and the marginalization of the trans and travesti population in Argentina, upon which the move- ment has built its rights claims. It draws upon interviews with key stakeholders in the trans rights movement in , and three months of fieldwork to delve into the motiva- tions and complexities behind the organizing strategies and conflicts that have propelled the campaign for introducing a trans labor quota.

Bio Isabel Cruz graduated summa cum laude from Yale University with a Bachelor's degree in Sociology and Human Rights. As an activist and aspiring academic, she is passionate about building bridges between studying issues of gender and sexuality and advocating for femi- nism and LGBTQ rights on the ground. Through her work with various nonprofits and or- ganizations, Isabel has implemented and supported advocacy, education, and community building projects for people who have been marginalized by the heterocispatriarchy. Cur- rently, she is a Community Educator at Girls Inc. of Metro Denver in the high school division.

Introduction In a world where lesbian, gay, bisexual, Province of Buenos Aires. As established in transgender, queer, and intersex (LGBTQI) the first article of the law, movements have erupted in many regions, The public sector of the Province of Argentina has received high levels of at- Buenos Aires must hire, in a propor- tention for its trailblazing laws concerning tion no less than one percent (1%) of sexual orientation and gender identity—in- the totality of its personnel, travesti, cluding the first marriage equality law to transsexual, and transgender people pass in Latin America in 2010 and the most that meet the conditions for suitabil- progressive gender identity law in the world ity for the responsibility and establish in 2012.1,2 In 2015, continuing the strong reserved job positions that must be momentum of the trans and travesti3 rights occupied exclusively by them, with movement,4 “Ley de Cupo Laboral Trans” the aim of promoting real equality of (Trans Labor Quota Law) was passed in the opportunity in public employment.5

Spring 2018, Volume VII | 31 This law has not yet been implemented: movements in literature across various there have been no budget allocations or disciplines. These movements are often programs designated to take charge of en- framed in social science scholarship as part forcing the law. Campaigns to implement it of the greater trajectory of the rise of identi- across the over 130 municipalities of Buenos ty-based politics as the modality of Aires are underway, and activists are pushing in the late 20th and 21st centuries. Thought to exert influence on how this implementa- to have coalesced through a transition from tion will be approached; thus, the scope of class-based politics, identity politics have the law’s impact remains to be seen. Upon its shifted the demands social movements future implementation, however, it has the make of the State and governing bodies to potential to generate up to 4,500 positions focus on civil and political rights claims for trans and travesti individuals.6 in the wake of the growth of liberalism.9 Although some news outlets and orga- LGBTQI rights movements, as we now nizations, such as the International Labor understand them, employ this model of Organization, have taken notice of the law, “minority rights” and “civil rights” claims it has generally received limited attention to establish formal recognition for a group despite being unique in the global context of identities that has come to be unified by of LGBTQI social movements. While every their deviance from traditional structures country and region has particular focuses, of gender and sexuality. Building upon each LGBTQI, and particularly trans organiza- other, the number of identity categories and tions, have largely focused on issues and the success and visibility of identity-based campaigns that center on identity, health, activism continue to expand worldwide; and civil and political rights, such as chang- what started as a gay rights movement ing processes for legal gender recognition, (largely traced in the literature to the HIV/AIDS management and prevention, and United States) has continued to expand to more.7 There have been some campaigns encompass lesbian, transgender, intersex, around the world that promote access to and many other groups who continue to work for LGBTQI populations, but the stake new claims.10 overlap between labor and LGBTQI move- As these movements and the literatures ments has been decidedly limited.8 surrounding them have developed, activists Connecting these themes, this article and scholars alike have come to question explores the motivations behind the move- both the framework of identity politics as a ment’s campaign for the Trans Labor Quota mode of organizing activism and academic Law. How will their strategic choices and understandings of its trajectory. First and challenges shape the trajectory of trans and foremost, this framework reflects a defined travesti rights going forward? Through my focus on the West as the cultural and polit- analysis of nine interviews with key infor- ical center for the development of LGBTQI mants within the movement—including social movements. A simplified narrative, activists, academics, lawyers, leaders, and this process obscures the work of schol- lawmakers—and three months of fieldwork, ars and activists outside of the West who I will examine this movement and its strat- navigate complex power dynamics and glo- egies to shed light on the processes and de- balized flows of information, which have cisions behind this unique law. complicated how we conceive of the trajec- tories and origins of the movements they The Evolution of LGBTQI Social are part of. Movements in Global Literatures Alternative modes of conceptualizing With the rise of LGBTQI activism around gender- and sexuality-based movements the world has come increased attention have been created by scholars and activists to the processes underlying these social around the world. One example of many,

32 | LGBTQ Policy Journal “sexual rights,” has been proposed by lead- ment. Consistent with wider literatures that ing LGBTQI rights organizations as a strat- highlight the particular relationship between egy that centers on a “common context of government and social movements in Latin struggle”—hegemonic structures of gender America, this concept describes how move- and sexuality—rather than the identity con- ments target the State to simultaneously se- structs themselves: cure certain rights, establish their political The sexual rights framework is power, and visibilize their voices and issues.14 therefore, by definition, a broad, Renata Hiller builds on this framework to multi-issue framework that serves to discuss two forms of influence that “sexual acknowledge the fluidity of identities diversity”15 movements can have: 1) the “de- across space… In addition to address- mocratization” of the State through expand- ing emerging tensions of identity ing what constitutes citizenship and social politics, the sexual rights framework belonging, and 2) the legitimation of the presents a formal opening for broader repressive State, as certain improvements coalition building.11 in the regulation of sex and gender privilege some while continuing to marginalize others Although this framework strives to promote under the guise of progressivism.16 inclusion, some scholars and activists have Visibility is another prevalent concept in insisted that it fails to resolve the contin- Argentine literatures that has been used to ued conflation of rights surrounding gen- examine the sexual diversity movement and der and sexuality, particularly in regards its strategies. Drawing from traditional iden- to trans and intersex populations.12 Lack of tity and minority politics strategies, visibility inclusivity is a common critique throughout has been employed as a goal in itself and as the movement and in literatures regarding a strategy to claim other rights. Through this this organizing strategy and the movement lens, visibility politics is an analytical frame- more broadly. Many individuals and orga- work that embodies the tensions between nizations have pointed out that LGBTQI individual and collective activism has largely failed to engage with processes that arise in identity-based work: other dimensions of oppression, such as “On one hand it’s possible to approach these racism, classism, and ableism, among oth- social processes of visibility through the ers, and has even reinforced them through lived experiences of the involved subjects its work.13 or turn to the analysis of the representation and stereotypes of different subjects that cir- Argentina’s Growing Role in the culate in distinct cultural environments.”17 International Conversation Scholars and activists have debated the ways As leading actors in this panorama, Argentine in which both the movement and academia activists and scholars have been confronting have navigated reconciling this tension be- these challenges in ways that both incorpo- tween lived experiences and cultural per- rate and depart from international conversa- ceptions in building visibility. For example, tions. In the vein of sexual rights analyses, connecting her work to larger conversations one key framework that has been adapted about respectability politics, the late prom- from international literatures is sexual cit- inent travesti activist Lohana Berkins ques- izenship. Originally a Western concept ap- tioned whether demanding inclusion and plied to Latin American movements through political power for trans and travesti people Amuchástegui and Rivas’s 2008 text, sexual in traditional spaces, like or of- citizenship describes the modes in which fices, further marginalizes those who cannot groups organized around sex and gender or- or do not want to take part in those spaces— ganize in nations where the Catholic Church and even legitimizes oppressive systems the strongly connects to society and govern- movement opposes.18 Further, some trans

Spring 2018, Volume VII | 33 scholars caution against developing domi- formation they shared with me. All of my nant narratives of trans identities through interviews were conducted in Spanish and this process of visibility. In his essay, Blas my recruitment and interview procedures Radi challenges the simplistic politicization were approved by the Yale Institutional of trans identities in academia, cautioning Review Board. As a cisgender woman from scholars from labeling all trans and travesti the United States, I wanted to ensure that people as “activists” by nature of their identi- the project I designed and the questions I ties and expanding academic frameworks to asked reflected the interests and needs of reflect the totality and heterogeneity of these the movement and the people who gener- identities.19 ously gave me their time. The above concepts are a select rep- Using qualitative methodology rooted in resentation of the growing conversation grounded theory,21 my results and analysis across Argentine and international liter- showcase the subjectivities I access through atures surrounding these identities and interviewees and immersive fieldwork. With movements as their visibility and news of nine interviewees and a short span of eth- their recent victories expand in reach. As nographic observation, this project draws the first of the movement’s groundbreaking from a small but diverse pool of participants victories, the Gender Identity Law has been and experiences to shed some light on the the center of attention. A limited literature larger picture of the movement and its his- is emerging around other issues and cam- tory and motivations. As key informants paigns, including access to work and the representing several organizations, areas Trans Labor Quota Law. But there are many of expertise, modes of involvement in the avenues that have yet to be explored within movement, and life experiences, those in- this rich and growing field of study, and the terviewed offered perspective from diverse literature has not yet closely examined the vantage points within the movement; but motivations and challenges underlying the due to the limited nature of my sample, my Trans Labor Quota Law and its implications results are not generalizable. Rather than for the trajectory of the movement. attempt to create a comprehensive narra- tive of the entire movement or trans and Research Methodology travesti populations, my project seeks to This article draws from participant observa- open up discussion about this movement in tion and interviews collected in Argentina Argentina through the lens of the perspec- from May to August 2016 and via phone tives I was able to access. in January 2017.20 In particular, I draw on interviews with different stakeholders in “La Primera Necesidad”: Work as a trans and travesti rights organizations and Fundamental Tenet of Identity Politics LGBTTTI communities in Buenos Aires. I Participants emphasized the unique impact limited my scope to leaders, activists, and that access to work has on the wellbeing of academics to explore the particular per- trans and travesti populations when dis- spective of those that have knowledge of cussing the strategies behind the campaign or experience with the issues facing trans to establish a trans labor quota law in the and travesti populations, and to the orga- Province of Buenos Aires. First and fore- nizational perspective to understand how most, eight of nine interviewees cited the such perspectives are operationalized for material significance of the quota as one of social justice work. Information regarding its major contributions to trans and travesti my participants and their profiles are avail- rights. For example, one interviewee stated: able upon request. I received verbal consent “The advantage is that it could in a good to use their real names, since their identi- moment, when they follow through, we ties as public figures are relevant to the in- will see that the girls will be able to access

34 | LGBTQ Policy Journal a job, a legal job, have a salary, have medical “orders” and thereby defines the way peo- coverage. This is why it's so important.”22 ple organize their time and day-to-day ac- Others listed additional material benefits, tivities: “work has a multiplicative effect in including enabling them to “buy clothes, people’s lives. Having a job orders some- buy theater tickets” and “pay for housing or one’s life, a job can completely order a get credit.” Retirement, which five people subjectivity, a routine. Sometimes yes, and discussed, was also seen as a major advan- sometimes no.”25 Building upon this notion tage of being employed formally, in con- of subjectivity, Thomas Casavieja discussed junction with “obra social,” or public health how a career can impact one’s identity and insurance, as one of the state-sponsored how trans people have historically been de- benefits that people who work in informal nied the right to define this for themselves: sectors are unable to access. Work is 70 percent of one’s life. And Beyond the tangible impacts of these for some, it defines you, it defines you resources, five interviewees emphasized as a person, it defines your ideals. But the key role that material benefits play in trans people have not had the capac- social inclusion and culture: “Today, in a ity to do this. We end up getting the capitalist culture where everything is com- jobs that no one else wants, getting mercialized and select few can access cul- the jobs that don’t pay well. This is tural resources, work enables this access what happens in the majority of the for the trans men and women, where many population, most trans and travesti of us who are privileged to have jobs and people can’t choose.26 never have our gender identity questioned have always had access.”23 For some, this All of my interviewees emphasized that the aspect defined the importance of this law way labor affects trans identities is simi- and campaign for access to work: “Work lar to how it affects all individuals. They because we need to guarantee our day to expressed, however, that their historical day. Having a job that allows us access. segregation into certain careers, such as Work as a human right, to have the ability sex work/prostitution27—mostly for trans to develop ourselves in a life where every- women and travestis—and taxi driving or thing is exchanged for money.”24 other informal careers for trans men, differ- entiated how gaining access to the formal Social Implications of the Law labor market would influence their individ- Building on the material provisions of the ual subjectivities: law, all of my interviewees identified the im- Work is important because it will portance of identity formation processes in change the rhythm of life for some their explanations of the campaign’s strategy. girls. The important thing would be They outlined how changes in identity for- that we would live life during the day, mation on both the individual and collective not at night. That would be import- level would impact the social and economic ant because we work in prostitution, inclusion of trans and travesti populations. which is at night, and brings a lot of things, like drugs, alcohol, sickness Individual Level too. But to have a legal job, it's like you On the individual level, participants iden- can move on from all of that.28 tified the impacts that one’s line of work could have on 1) their self-perception and Beyond impacting identity through the individual identity and 2) how they con- establishment of routine, work was also ceive of their role and ability to contribute connected to individuals’ ability to “proyec- to society. The first major theme within tarse,” or aspire towards the future. Inter- discussions of individual life is that work viewees who spoke about the aspirational

Spring 2018, Volume VII | 35 value of jobs attested to the power of being ily, and what it has meant for my par- able to look forward to a career, to a brighter ents, for my grandparents, and that is tomorrow: very internalized too. It's just as much It is complicated for trans people to the benefits as the idea of having the aspire to the future. It’s complicated rights that one starts to acquire when because they don’t know if they are they have a job.30 going to be alive tomorrow. It’s not One of my interviewees described her just that they don’t know if they’ll own process of identity in this way across have a salary at the end of the month, her transition. Alessandra Luna, a trans they do not know if they are going woman, has recently returned to working to be alive tomorrow, do you under- for the first time since transitioning and stand? [Work] is having the security discusses the implications of this process: to be able to have that relationship I worked for the government for 15 with society, to be able to reinsert years, that was my experience be- themselves, to be able to shake the fore I made my transition as a trans stigma. … Thus, the impact [of the person. Since the moment where I law] is going to be grand in the collec- transitioned, that is where it got com- tive, I’m telling you.29 plicated. I saw the issue of how a trans person can never again gain access to In addition to enabling people to “guarantee formal employment. That was my their day to day,” in the words of Santiago experience, anyway. It just now that Romero Chirizola, and enabling them to I have returned to work in the state, imagine a life longer than the current 35-40 returned to getting a job, to be able year life expectancy of trans and travesti to have a monthly salary, to be able to people in Argentina (a point which six men- aspire towards the future.31 tioned directly in their interviews), work also shapes their ability to think about what Overall, the general consensus among my they want out of a longer lifespan and who participants was that work was important they want to be. to how everyone identifies and perceives Discussions of aspirations pointed to of their role in society; gaining access to both personal and social phenomena, as formal labor for trans and travesti people being able to dream bigger and longer with meant gaining the ability to build personal the prospect of formal work impacts how identity in a more intentional and for- the individual perceives of oneself and one’s ward-thinking way.31 role in society. Karina Nazábal contrasts her experience as a cisgender woman to shed Social and Collective Level light on what this shift in trans and travesti Building on how my participants framed the individuals’ thinking about their place in so- impacts of labor on individual identity for- ciety means: mation processes, many also discussed how I never questioned my ability to get a the inclusion of trans and travesti people in job. Sure, there could be a lack of jobs the formal labor market will shape how so- due to macro-political questions that ciety conceives of their identities and role make it such that one doesn't have a in society. Visibility was a major aspect of job and cannot access one. But I never this discussion; participants expressed that thought that I wasn't going to be able bringing more attention to trans issues and to get work because of me, and that identities is important, but it was also es- is something that has been very inter- sential that trans people should exert more nalized. And the benefits of that job, control over this visibility. Nadiha Molina what it will mean for me, for my fam- discusses how political visibility helps fa-

36 | LGBTQ Policy Journal cilitate social inclusion and shape societal Common phrases that accompanied this perceptions: sentiment, both in interviews and in We were able to open up the debate speeches at marches and public events, and it opened the perspective of many were that trans and travesti people are people who currently see us as Other. more than, or were “born for” or “serve” a Now they have started to interpret it higher purpose than sex work/prostitution: differently, that we are people, beyond I want to emphasize that clearly soci- our gender identity and expression of ety plays a role and also reflect on that gender, we are people and we have fact that we do not only serve nor do those rights and we go after them.33 we exist for certain activities. Rather, there is a great capacity that you can Building on the importance of political vis- find in many us. Our population can ibility, interviewees emphasized that inser- make systemic changes and changes tion into the formal labor market through that are good for society.36 the quota would also improve their general social visibility: This sentiment was shared across a spec- The law is related to this: we are visi- trum of beliefs on the abolition and regula- bilizing something that has been true tion of sex work/prostitution. In addition to for many across their lives and has symbolic changes associated with including been historically hidden in our coun- trans people in the formal labor market, try. Behind the scenes are the trav- various individuals also pointed out the estis, those who work at night, those benefits of the interactions they would have who don't go out on the streets, those with the general public: who can't walk hand in hand with If they can be inserted into work, that their partner on the street. And what they are visible, and when you go to a is difficult for society is to see them, pharmacy and the person working is a to let them into the light of day, to see trans person, when you go to the doc- them without prejudice.24 tor, the secretary is a , or when my mom gets in a taxi it is a Participants, from a variety of perspectives trans person. Then we can say there's on sex work/prostitution, framed how they social inclusion … yes, it definitely wanted increasing visibility to reshape seems like work is central to the perspectives on trans and travesti people. theme of visibility of identity and of There was an overwhelming consensus that social inclusion.37 people wanted this law to dispel dominant narratives that trans and travesti identities “Normalizing” was another way of discuss- are synonymous with sex work/prostitution: ing the role of labor in social inclusion; as There is another factor that plays a Julian Ortega points to above, incorporat- strong role in the media: the asso- ing trans and travesti into the work force is ciation of the travesti identity with a tangible way of incorporating them into prostitution. It appears as a sad and what Nazábal termed the “social fabric.” A deplorable, but inevitable part of the few participants discussed the moral impli- social order that if you are travesti, the cations of discussions surrounding social only way you can survive is through inclusion and normalization, highlighting prostitution…Including programs the tensions between ideology and prac- and movies that intend to denounce tice. For example, Luna mentioned being this situation, that the travesti always torn between her perspectives as a political appears in prostitution is something science student and as a radical trans ac- that we have to break from.35 tivist: she understood the political value of

Spring 2018, Volume VII | 37 “naturalizing” trans identities and reaching “Take responsibility” and “accompany” were the public, but also feared playing into hege- common phrases across these interviews monic social systems: that discussed participants’ expectations We really are not interested in get- of the State and hopes for the law. Four in- ting every coworker in an office with dividuals specifically named the State as ten people to accept us, we want the the party primarily responsible for provid- position in the office. Today, we rec- ing labor opportunities to its citizens, as ognize that we have to inform people Romero Chirizola stated directly: “Since we and we have to convince people for frame reality through work, we must demand the purpose of getting those rights… work as a right, and work must be demanded From the other side, I recognize that from the State.”40 Several individuals further society… will have its own process in highlighted that the State also bears respon- which we see the naturalization of sibility over other rights that are inextricably distinct identities and at the same connected to work, such as education, and time a rupture… with that which is must follow through on all of their respon- this heterosexist, binary system.38 sibilities to ensure the success of trans and travesti people in the workforce: Although reaching the goal of social inclusion It has to be a suitability41 from the State, was believed to be a difficult and time-inten- where the State takes responsibility to sive “process,” all of my interviewees framed construct a space and atmosphere in it as a primary goal of the labor quota cam- the framework of the workplace where paign, and the movement more broadly. Eco- it’s possible for the person to access nomic inclusion—including this first step of the education that they had to aban- establishing a quota—was understood to be a don or could never start. And other is- key, if not the principal, mechanism to achieve sues start to unfold from there—I also this goal of true social inclusion. think about health… 42

Policy: A beginning or a means to an end? For these participants, the State was an Further describing the strategies behind the obvious target for the movement’s efforts campaign for the Trans Labor Quota Law, given the State’s pre-established respon- participants discussed why the movement sibility and power to provide public goods chose to focus on the State in their efforts. that recognize a comprehensive set of rights Seven interviewees specifically discussed for all of its citizens. why this focus was of utmost importance to Beyond the legal benefits of getting the the project. Nazábal frames her rationale for State to take due responsibility for the eco- why this initiative targeted the State from nomic and social inclusion of trans and trav- her perspective as an elected representative: esti people, several interviewees discussed Centrally, [our work is grounded] in the political benefits that a legal campaign an outstanding responsibility and a can have for a budding movement. Five historical debt that we owe to the participants emphasized that the passage trans and travesti population, related of this law showed persistence and politi- to the fact that it is impossible for cal might, which served to further establish them to access dignified work in Ar- their voices and visibilize their movement. gentina and in the world … the State Also, many expressed that this approach has to accompany them and include opened up more doors to work with the them and for this we are hopeful … the State and weigh in on policy: reality is that as the State my role is Primarily, we must occupy space in to guarantee them work, in Argentina all of the debates that they have … that is a constitutional right.39 Clearly, if the State does not work

38 | LGBTQ Policy Journal with these organizations, with these uniquely resonates with the goals and needs movements that deeply understand of the trans and travesti rights movement. [trans] issues from experience, clearly With its direct implications for material we will never get to a point where the and sociopolitical realties, work serves as people who decide and make deci- a junction for a variety of factors that are sions understand the reality and pure crucial to the project of inclusion and social necessity of the populations that we change proposed by identity-based activ- represent.43 ism. The Trans Labor Quota Law and the Despite their belief that policy was the ap- political activism around it were designed propriate avenue to set social and economic to unify these conflicting aspects of iden- inclusion in motion, most participants ac- tity, rights, and movement building across knowledged the limitations of politics and social, material, individual, and collective recognized the larger “cultural battle” that dimensions. Through their framework, this is necessary for true social and economic in- project offers a uniquely comprehensive set clusion. Although one participant said that of benefits that both serves the most vul- society seemed ready, all others expressed nerable of individuals within these popula- the difficulties of garnering truly effective tions and builds momentum and visibility empathy through legal means: for the movement. There is a social battle that we have to These results both reinforce and chal- fight, that cannot be fought with law. lenge existing understandings of LGBTQI Sadly, the more laws we have to am- rights movements in Argentina and be- plify our rights, if the fight isn't social yond. First, linking identity and access to … If someone doesn't look inside them- work through this campaign questions the selves, what they want for themselves notion that identity politics are a diversion and for their kids and their grandkids from class struggles; this connection even and their family and the people they posits that these politics are mutually de- love, I think change lies there. If it's pendent. On the other hand, my results not there, if we don't look at what hap- are more consistent with “sexual rights” pens as if it was happening to us, as if frameworks: the movement framed the it were our own skin in the game, this labor quota project and campaign through battle is not going anywhere.44 a “common context of struggle,” i.e., trans and travesti exclusion from the labor mar- But the limitations of politics and the State ket and society, that fostered coalition were seen as an inevitable part of the pro- building across various organizations and cess; most maintained that this campaign resonated with an Argentine public familiar and law were necessary starting points to with labor insecurity. However, these strat- reach the general public. This “social bat- egies push the bounds of what comprise tle” or “cultural battle” was often framed “sexual rights,” moving closer to the inclu- as the next step in pushing the project of sion of the totality of marginalized people’s inclusion forward. identities in gender and sexuality activism for which critics have called. Implications of Work-Centered In addition to explaining the motivations Organizing in Context underlying the choice to pursue access to Overall, the insights shared by my partici- work, my participants also allude to why a pants help shed light on why the movement political and legal strategy was implemented. pursued this particular policy goal as the Their focus on the State through law and new frontier for trans and travesti rights in through a quota in the public administra- Buenos Aires. They paint access to work as tion is consistent with the literatures that a critical issue in Argentine society that also have characterized Latin American social

Spring 2018, Volume VII | 39 movements as primarily targeting the State spectives I was exposed to in my experience in political activism. Following literatures in fieldwork, as well as those represented in on sexual citizenship, the State was framed journalistic and academic literatures, I doubt in many participants’ testimony as a key they would negate my findings. locus of responsibility and visibility. The It is important to note that my conclu- act of the law and eventually having sions are specific to the context of Buenos trans and travesti people incorporated into Aires, Argentina. My data does not speak jobs in the State serves two purposes. First, specifically to activists in other regions of it “democratizes” the State through incor- the country, many of whom are connected porating trans and travesti populations and to national organizations in Buenos Aires issues into the law and the workplace. Sec- but might have varied perspectives on how ond, it makes these populations and their work, identity, and the State interact out- needs more visible and helps give activists side of the central zone of national gov- greater agency over how trans and travesti ernment involvement and state control. identities are understood and built in the Further, this particular model for how work, public sphere. But the terms of this visibiliza- identity, and activism intertwine is specific tion remain contested; the diverse modes of to Argentina. My analysis cannot speak to thinking surrounding sex work/prostitution how this kind of campaign might manifest and the naturalization versus radicalization or function in another context, nor if it of trans and travesti identities illustrate that would be possible. Although my results can this project hardly resolves questions sur- only directly speak to the trans and travesti rounding respectability politics. rights movement in Argentina, they also My results present one possible expla- speak to themes of political strategy that nation for why the trans and travesti rights are prevalent in literatures about other con- movement pursued this unique strategy in texts. Other movements can gain valuable Argentina. But my model certainly is limited insights from the successes and challenges in capacity to speak to the breadth of the of this unique campaign. But, ultimately, my work the movement has pursued and of the data best speaks to the particularities of the diverse actors in the movement who might Argentine movement and how they came to have different perspectives to contribute. achieve this groundbreaking law. The particularities of my methods, sample, and positionality also impacted the perspec- Conclusion tive that I was able to access through my This project has illuminated one take on the interviews and fieldwork. My results do not motivations and implications of the Trans claim to represent the “trans perspective” Labor Quota Law from the perspective of on the role of work in identity and quality some of the very actors involved in creating of life, nor how the Argentine public views and passing it. The campaign’s successful this law and trans and travesti issues—nei- fusion of labor rights and identity politics ther of which imaginary, monolithic per- marks an important step in advancing so- spectives exists. Rather, I sought out one cial and economic inclusion for trans and perspective—the insights of individuals who travesti populations in Buenos Aires. In have an intimate familiarity with the topic at combining social, material, individual, and hand and are in a position to connect them collective concerns, this victory highlights to larger social and historical structures—on the true stakes of LGBTQI and other iden- one particular issue within a heterogeneous tity-based movements: the survival and population that navigates many complex comprehensive agency of marginalized pop- systems and phenomena. Perhaps a wider ulations. Although the fight is far from over, range of participants would have added fur- my participants’ testimony emphasized that ther nuance to my results, but given the per- this victory, in a hard-fought battle waged by

40 | LGBTQ Policy Journal many individuals and organizations, must be celebrated as a milestone in this growing End Notes movement and for the opportunities it may 1 “Ley 26.473 de Identidad de Género” (Congreso grant that many activists sacrificed much to de la Nación Argentina), or the Gender Identity Law of 2012, was the first law to depathologize obtain. These activists demonstrated that gender identity in the eyes of the state and movements can build political momentum guarantee state coverage of gender-reaffirming by advocating for the needs of the most healthcare (including reconstructive surgeries and marginalized and stigmatized members, hormone treatments) for trans and travesti people such as sex workers/prostitutes, instead of (http://servicios.infoleg.gob.ar/infolegInternet/ anexos/195000-199999/197860/norma.htm). This leaving them behind. law is widely recognized as a historic achievement In sum, this project provides perspec- that established the influence of a distinct trans and tive on what the work of the trans and trav- travesti rights movement in Argentina and around esti rights activism in Argentina can show the world, as countries such as Denmark have used us about the dynamics of LGBTQI activ- the law as a model for their own legislation. 2 Emily Schmall, “Transgender Advocates Hail Law ism around the globe. Although the scope Easing Rules in Argentina,” New York Times, 24 May of this project does not contain direct in- 2012, http://www.nytimes.com/2012/05/25/world/ ternational comparison, the unique strat- americas/transgender-advocates-hail-argentina- egies espoused in the Trans Labor Quota law.html. 3 Law of 2015 prompt questions for other Travesti roughly translates to “transvestite.” It is a term that has been reclaimed by people who national and international gender and sex- neither identify as women nor as men, particularly uality movements: how can we incorporate in Latin America. I choose not to translate this a more comprehensive understanding of term to preserve its political significance as a identity and existence in identity-based concept that establishes a distinct gender identity from those coined by Western academics, such as activism and rights claims? What rights are . necessary to authentic inclusion and politi- 4 I use “social movement” throughout this paper cal agency? Further studies should continue to refer to the trans and travesti organizations to examine the nuanced strategies behind in Argentina that organize and campaign around this law, further campaigns in Argentina, various issues because such is the language that the literature uses and how my participants identify and efforts around the world to provide their work. much needed perspective on how trans and 5 “Ley 14783,” Gobierno de la Provincia de Buenos broader LGBTQI movements will shape law Aires, 2015, http://www.gob.gba.gov.ar/legislacion/ and society going forward. As researchers legislacion/l-14783.html 6 across disciplines expand their work to in- Julián Ortega, “Trabajo en los Márgenes: Análisis de la Categoría de Trabajo Informal en Mujeres clude these movements and an intensified Trans de la Ciudad de Buenos Aires,” Presented focus on trans populations, academia has an at the 2nd International Conference of LGBT ethical responsibility to center trans voices Psychology and Related Fields, Rio de Janeiro, and needs in how researchers design and Brazil, 2016. 7 conduct their research—taking care to in- Neela Ghoshal and Kyle Knight, “Rights in Transition: Making Legal Recognition for terrogate, rather than perpetuate, dominant Transgender People a Global Priority,” Human narratives of these increasingly visible and Rights Watch, 2016, www.hrw.org/world-report/2016/ vocal populations. rights-in-transition. 8 International Labour Organization, “Gender Identity and Sexual Orientation: Promoting Rights, Acknowledgements Diversity and Equality in the World of Work: Results I am eternally grateful to my participants for of ILO’s PRIDE Project,” 2016, www.ilo.org/wcmsp5/ their generosity, wisdom, and inspiration. I groups/public/---dgreports/---gender/documents/ would also like to thank the Sociology de- briefingnote/wcms_481575.pdf. 9 partment at Yale University, especially my Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University advisor Lloyd Grieger, for guiding me in this Press, 1995): 52-77, https://libcom.org/files/Wendy_ project. Brown_States_of_Injury_Power_and_Freedom_in_

Spring 2018, Volume VII | 41 Late_Modernity__1995.pdf. el-consumo-responsable-de-informacion. 10 Sangeeta Budhiraja, SusanaT. Fried, and Alexandra 20 In addition to my interviews, I participated in Teixeira, “From Alphabet Soup to Sexual Rights ethnographic immersion in a variety of events, and Gender Justice,” in Development, Sexual academic projects, and actions of various Rights and Global Governance (: organizations. Although I will not formally discuss Abingdon and New York 2010):131-144, http:// most of these experiences, they equipped me www.isiswomen.org/index.php?option=com_ with a wealth of knowledge that informed my content&view=article&id=279&Itemid=261 interviews and understanding of the workings of the 11 Budhiraja et al., 141. movement. 12 Mauro Cabral and Gabriel Benazur, “Cuando Digo 21 Further information on my methodology is Intersex”, cadernos pagu 24 (2005): 283-304, http:// available upon request. www.scielo.br/pdf/cpa/n24/n24a13.pdf. 22 Zoe, interviewed by the author, Buenos Aires, 13 Stephen Brown, “‘Con Discriminación y Argentina, 4 August 2016. Repression no hay Democracia’: The Lesbian Gay 23 Emiliano Litardo, interviewed by the author, Movement in Argentina,” Latin American Perspectives Buenos Aires, Argentina, 24 June 2016. 29, no. 2 (2002): 119-138. https://www.jstor.org/ 24 Santiago Romero Chirizola, interviewed by the stable/3185130 author, Buenos Aires, Argentina, 5 July 2016. 14 Ana Amuchástegui and Marta Rivas, 25 Iñaki Regueiro, interviewed by the author, Buenos “Construcción Subjetiva de Ciudadanía Sexual en Aires, Argentina, 26 July 2016. México: Género, Heteronormatividad, y Ética,” 26 Thomas Casavieja, interviewed by the author, in Sexualidad, Derechos Humanos, y Ciudadanía: Buenos Aires, Argentina, 19 July 2016. Diálogos sobre un Proyecto en Construcción, eds. 27 I include both terms to honor the diverse Ivonne Szasz and Guadalupe Salas (Mexico, perspectives of my interviewees with regards to D.F.: El Colegio de México, 2008), https:// debates surrounding the significance of sex work/ books.google.com/books?hl=en&lr=&id=k9Zjo_ prostitution in trans and travesti communities. i9caYC&oi=fnd&pg=PA57&dq=amuchaste 28 Zoe, 2016. gui+y+rivas&ots=iT 29 Alessandra Luna, telephone interview with author, PRnapuhD&sig=uujOOKs8_ 31 January 2017. opFr1skqritl7x5u2g#v=onepage& 30 Karina Nazábal, interviewed by the author, Buenos q=amuchastegui%20y%20rivas&f=false. Aires, Argentina, 2 July 2016. 15 The umbrella term that organizations and actors 31 Luna, 2017. within the LGBTTTI movement use in Argentina 32 The role of gender in the relationship between is “diversidad sexual,” i.e. sexual diversity. Activists work and identity did not emerge as a main theme and academics in Argentina also opt to use in my data, although one interviewee, Litardo, LGBTTTI, often omitting the “Q”, because “queer” discussed the radical potential of changing how we is not usually regarded as a relevant term within associate gender with certain professions through their context. the incorporation of trans and travesti people into 16 Renata Hiller, “En las Faldas de O’Donnell: the work force. This discussion is present in this Discutiendo los Alcances del ‘Matrimanio movement, but deeper analysis is outside of the Igualitario; en Argentina,” Sociedade e Cultura 15, scope of this particular project and should be more no. 2 (2012)359-368, www.redalyc.org/articulo. thoroughly unpacked going forward. oa?id=70325252011. 33 Molina, 2016. 17 Alma Moreno, “La Invisibilidad como Injusticia: 34 Casavieja, 2016. Estrategias del Movimiento de la Diversidad Sexual,” 35 Nazábal, 2016. in Todo Sexo es Politico: Estudios Sobre Sexualidades 36 Molina, 2016. en Argentina, eds. Mario Pecheny et al. (Buenos 37 Julián Ortega, interviewed by the author, Buenos Aires: Libros del Zorzal, 2008), https://carlosfigari. Aires, Argentina, 1 July 2016. files.wordpress.com/2011/02/todo-sexo-es-politico- 38 Luna, 2016. pecheny-figari-jones-eds.pdf, author’s translation. 39 Nazábal, 2016. 18 Lohana Berkins, “Travestis: Una Identidad 40 Romero Chirizola, 2016. Politíca,” in Pensado Los Feminismos en Bolivia, ed. 41 Here, Litardo refers to specific language in the Patricia Montes (La Paz: Conexión, 2006), 221-229, law that stipulates that trans and travesti people http://www.conexion.org.bo/uploads/Pensando_los_ hired through the law must be “suitable” for the Feminismos_en_Bolivia.pdf. position. In other words, he asserts that the State 19 Blas Radi, “Serás Activista Trans o … Serás should take responsibility for preparing trans and Activista Trans: Sobre el Consumo Responsible de travesti individuals to work in the State, rather than Información,” La revista del CCC 8, no. 22 (2015): demanding “suitability” from the outset. 1-6, http://www.centrocultural.coop/revista/22/ 42 Litardo, 2016. seras-activista-trans-o-seras-activista-trans-sobre- 43 Molina, 2016.

42 | LGBTQ Policy Journal LGBTQ Perceptions of the Police: Implications for Mental Health and Public Policy

Sriya Satuluri & Kevin L. Nadal John Jay College of Criminal Justice— City University of New York

Abstract The present study utilizes a quantitative methodology to measure the relationship be- tween sexual orientation and gender identity, individuals’ perceptions of police, and men- tal health. The researchers hypothesize that lesbian, gay, bisexual, transgender, and queer (LGBTQ) participants (N = 41) will have more negative perceptions of police than their non-LGBTQ (i.e., heterosexual cisgender) counterparts (N = 47), and that there will be a negative relationship between individuals’ police perceptions and mental health. Com- parative t-tests supported that LGBTQ participants report more negative perceptions of police than non-LGBTQ participants, while a correlational analysis indicated a significant negative relationship between mental health and individuals’ perceptions of police. The results of the study suggest further inquiry into understanding the roles of sexual orien- tation and gender identity in determining attitudes toward police, while they also provide preliminary insight into the relationship between individuals’ perceptions of police and mental health. The data was drawn through an online survey site and participants were currently residing in the US.

Bios Sriya Satuluri is a social worker and researcher at Swayam, a feminist organization in India committed toward ending and girls. She graduated from John Jay College of Criminal Justice, City University of New York with a Master’s degree in Forensic Psychology. Currently, she is part of the larger women’s rights movement in India and is dedicated to contributing toward building a violence-free and equal world. Her primary interest is in working with individuals who are marginalized based on their gender identity and sexual orientation, so as to ensure that such individuals have access to mental health services.

Dr. Kevin Nadal is a of Psychology at John Jay College and The Graduate Center at City University of New York (CUNY). He is the former Executive Director of CLAGS: The Center for LGBTQ Studies; the past president of the Asian American Psychological Association; a cofounder of the LGBTQ Scholars of Color Network; and a trustee of the Filipino American National Historical Society. He has authored eight books and over 100 publications, including Filipino American Psychology and That’s So Gay! Microaggressions and the LGBT Community. A contributor to Huffington Post and Buzzfeed, he has been featured on CBS, NBC, PBS, Fox News, The History Channel, and more.

Spring 2018, Volume VII | 43 Keywords: perceptions of police, police mis- people report negative experiences with conduct, discrimination, sexual orientation, police, which then impacts their ability to LGBTQ, mental health seek help—even when they are targeted by violence.6 Throughout the history of the US, there While there is a body of scholarship on have been many instances of police mis- police misconduct toward people of histor- conduct toward the lesbian, gay, bisexual, ically marginalized racial groups,7,8 there is transgender, and queer (LGBTQ) commu- very little empirical research that describes nity.1 Police brutality against LGBTQ peo- LGBTQ perspectives of law enforcement. ple can be traced back to the early 1900s, Though there is some literature that exam- when police officers regularly arrested ines experiences of LGBTQ police officers LGBTQ people on sodomy charges, which themselves,9 limited literature explores how criminalized oral or —even when LGBTQ people feel about police officers, involving consenting adults in the privacy how they interact with police officers, and of their homes.2 For decades, it was also how their experiences with law enforce- common for police to raid bars frequented ment influence their mental health. The by LGBTQ customers—arresting them for present study explores LGBTQ people’s sodomy, or if their gender presentation did perceptions of police and compares them not match the gender on their identification to perceptions of police held by the general cards. During one of these police raids of population. The study will also examine if the Stonewall Inn in in 1969, perceptions of police are, in any way, related LGBTQ customers fought back, and the to mental health outcomes. Stonewall Uprising ensued. Many scholars describe this protest as the beginning of the Community Perceptions of Police LGBTQ rights movement, as well as the be- Although the study of community percep- ginning of LGBTQ advocacy against police tions of police is somewhat new, there are discrimination and abuse.3 three aspects of police performance that Despite the remarkable progress of the emerge in a review of previous research LGBTQ rights movement, there are still on perceptions of the police by the general many cases of police abuse toward LGBTQ public: (a) confidence in the police, (b) people in present times. Police misconduct police fairness, and (c) police use of exces- against the LGBTQ community may be sive force.10 Researchers have described the passive or aggressive and includes profiling general belief that the police interact with LGBTQ individuals as criminal because of society in a negative way, which then paves their sexual orientation; sexual, physical, the way for stereotypes and ultimately and verbal abuse; inappropriate searches leads to biases in policing.11 Past research and maltreatment in detention centers; in this field reveals consistent reports that dismissing anti-gay hate crimes as being perceptions of police, even in the general the fault of the victim, etc.4 LGBTQ people population, are negative and police abuse is describe the many ways that factors like pervasive.12,13 gender presentation, masculinity, femi- Perceptions of police have changed over ninity, and intersectional identities impact the years and are influenced by a number the ways that police treat them.5 Intersec- of different factors. Researchers have found tionality, particularly, has a strong impact that personal experiences with law enforce- since compounded threats of discrimina- ment matter much more than having ab- tion arise when an individual’s identities stract concepts of the same when it comes overlap with multiple minority classes. to views about fairness or biases in police Transgender and gender nonconforming treatment.14 However, both personal experi-

44 | LGBTQ Policy Journal ence and symbolic attitudes play an import- cial groups lie in the middle. Asian Ameri- ant role in influencing opinions about the cans tend to have overall positive views of seriousness of crimes and making assess- the police (e.g., police demeanor, integrity, ments about overall police performance.15 and effectiveness), but less positive views Previous studies have shown how an in- of police fairness.24 Latina/o Americans dividual’s personal experiences influence perceptions of police are also found to fall their perceptions of police, and that percep- somewhere between their Black and White tions of police held by the general public are counterparts—having both positive and determined by the manner in which the po- negative reactions.25 lice interact with the public masses.16 These Among other factors that influence findings can be further interpreted through perceptions towards police, studies have procedural justice theory, which suggests revealed that gender may influence one’s that the key factor in shaping perceptions satisfaction with the police. One me- of authority figures is whether an individual ta-analysis found there were no major believes that they have been treated fairly gender differences in perceptions of police during personal encounters with agents of between men and women;26 meanwhile, a authority.17 Hence, in the context of a proce- more recent study found women are more dural justice framework, the focus is on the likely to hold higher satisfaction with the subjective experience of interaction with an police than men.27 Further, while women authority figure. Procedural justice may be survivors of sexual violence or stalking are particularly important to the experience of more likely to seek help than male survi- LGBTQ persons, who, belonging to a stig- vors,28 women with greater fear of victim- matized group, may pay closer attention to ization are less likely to be satisfied with how they are treated by law enforcement police.29 Most of these studies, however, agents and be more likely to cooperate take a very binary approach towards gen- when treated with dignity and respect. der. Since gender is not only determined by an individual’s biological sex, but is Sociocultural Determinants for also a complex interaction between sex, Attitudes toward Police one's internal gender identity, and one's Previous research has found that percep- , with an aim to be in- tions about police also tend to change clusive, the current study takes a more based on race, ethnicity, religion, and socio- nuanced view of gender. Additionally, the economic status,18 and are often attributed study reiterates the need to examine inter to biased police treatment against various sectionality while studying perceptions minority groups.19,20 There is overwhelming of police in order to take into account the research that reveals that Black and Lati- interplay between gender and other iden- na/o Americans have much lower faith and tities, such as race and ethnicity, in deter- confidence in the police than their White mining how an individual will be treated counterparts21—a difference most com- by an authority and consequently perceive monly attributed to racial profiling and ra- that authority. The dearth of literature in cial disparities in police behavior.22 Studies this respect brings to light the need for have shown that Black Americans are much such studies in the future. less likely than Whites to report good police LGBTQ people’s attitudes toward police behavior23—further corroborating that con- may likewise be due to police interactions. tinued racial discrimination contributes to A report issued by the National Coalition of attitudes toward police. Anti-Violence Programs found that almost While Black and lie on half (41 percent) of LGBTQ survivors of opposite ends of the spectrum with regard violence interacted with police after being to their perceptions of the police, other ra- targeted for violence.30 Of this group, over

Spring 2018, Volume VII | 45 one-third of survivors (35 percent) reported of their gender identity or sexual orien- that police were indifferent and about one- tation.36 For example, a disproportionate third (31 percent) reported that police were number of transgender women are singled hostile. Multiple survivors reported that out by the NYPD37 and are often targeted they experienced police misconduct as a re- as being prostitutes or for other sexual sult of the interaction—including excessive crimes.38 In fact, according to the National force, unjustified arrest, entrapment, and Coalition report, transgender people of raids. Black survivors were 2.8 times more color are seen to experience police violence likely to experience excessive force than at a rate that is more than two times greater non-Black survivors. These findings align than the LGBTQ community as a whole.39 with previous research that shows that vic- The New York police often search gender tims of anti-LGBTQ hate crimes do not re- nonconforming individuals in inappropri- port crimes because they fear that they will ate, aggressive ways in order to determine be treated by the police with hostility and their gender.40 Individuals have reported abuse.31 that police officers often disrespect their Further, police misconduct and mal- pronouns or accuse transgender people of treatment toward LGBTQ individuals has carrying fake identification if their gender been problematic for decades. According marker does not match how they pres- to Comstock, “Police officers refuse to ent.41,42 Transgender women, especially protect lesbian and gay victims, undermin- transgender women of color, describe being ing the seriousness of the offence com- sexualized by police officers (e.g., touched mitted against them and in return blame or frisked inappropriately) or treated as them for the occurrence of the incident.”32 less than human.43 Additionally, cisgen- One study cited that police also dismiss der women who appear to be masculine crimes against LGBTQ people as being (e.g., butch women) have reportedly been mere pranks, suggesting that homophobic stopped by the NYPD for SQF more often crimes are not taken seriously by police than women who present as more tradition- officers or even that homophobic crimes ally feminine.44 are acceptable to police.33 Another study While there are some qualitative stud- revealed that homophobia induces law en- ies that examine how experiences with forcement officers to respond differently police officers may affect LGBTQ -peo to incidents involving same sex couples ple’s mental health,45,46 there is a dearth than to incidents involving heterosexual of quantitative literature that examines couples.34 Given these factors, it can be this relationship. However, previous stud- hypothesized that negative treatment of ies indicate that individuals’ perceptions the LGBTQ community by police person- of discrimination have a major effect on nel may lead to negative perceptions about their mental well-being and psychological police in general, and may directly cause health. For instance, one study found that psychological distress. lesbian, gay, and bisexual people reported Police profiling may also affect how both lifetime and day-to-day experiences LGBTQ people, especially LGBTQ peo- with discrimination more frequently than ple of color, perceive law enforcement. their heterosexual counterparts, and that According to an analysis by the New York perceived discrimination was associated Civil Liberties Union, Stop, Question, and with a lower quality of life and psychiatric Frisk (SQF) policies were used to unjustly morbidity.47 Further, one review revealed target innocent New Yorkers35—dispropor- that LGBTQ people who experience a tionately affecting those who were Black or greater amount of microaggressions are Latina/o. However, many individuals also more likely to exhibit an array of mental reported being targeted by SQF as a result health issues—including depression, anx-

46 | LGBTQ Policy Journal iety, and trauma.48 Thus, one may wonder the mental health of the two comparison if negative experiences with police (e.g., groups. The nonequivalent control group overt discrimination, microaggressions) design was best suited to this study, since influence any mental health outcomes in the study did not involve randomization similar ways. in its assignment, and the two compar- ison groups differed in terms of a fixed, Overview of the Current Study pre-existing characteristic, which is sexual The purpose of the present study was orientation. twofold. The first aim was to investigate the multifaceted experiences and views Participants of police by LGBTQ people as compared The participants in this study comprised a to non-LGBTQ people (i.e., heterosexual, group of 93 individuals. Participants who cisgender people). The second aim was to self-identified their sexual orientations explore the relationship between police and gender identities as lesbian, gay, bisex- perceptions and LGBTQ individuals’ men- ual, transgender, queer, genderqueer, pan- tal health. While there has been a substan- sexual, or some other non-heterosexual tial amount of research on perceptions of group were categorized by the researchers police, most of the studies are qualitative as “LGBTQ.” Participants who identified in nature, and there is very little quanti- with as heterosexual and cisgender were tative research on police perceptions and grouped as non-LGBTQ. Five individuals LGBTQ populations. Moreover, research in with unidentified or missing sexual ori- this area also tends to ignore how mental entations or gender identities were re- health issues (anxiety, depression, emo- moved from the study. For the purpose of tional control, life satisfaction, etc.) may the study, the participants were divided be linked to perceptions of police. Thus, into two main comparison groups of 47 the present study aimed to (a) compare non-LGBTQ individuals and 41 LGBTQ LGBTQ and non-LGBTQ participants’ per- individuals. The two comparison groups ceptions of police and (b) to determine the were similar in age, with the age in each relationship between perceptions of police of the two groups ranging from 20 to 67 with mental health outcomes. There were years. The mean age for the whole sample two hypotheses for the study. Hypothesis 1: was 30.55 years, while the mean ages for A significant difference in police percep- the non-LGBTQ and LGBTQ groups were tions will emerge between the LGBTQ and 30.51 years and 30.62 years respectively. non-LGBTQ samples—with negative per- Participants of this study belonged to a ceptions being more prevalent among the wide variety of ethnicities and races, with LGBTQ sample. Hypothesis 2: Negative per- 47.3 percent who were White, 34 percent ceptions of the police will be more highly who were Asian American, 6 percent who correlated with negative mental health, were Black, and 8 percent who belonged whereas positive perceptions of the police to other racial groups. The gender of the will be more highly correlated with positive participants for the total sample included mental health. male (N = 29), female (N = 49), and trans- gender (N = 15). The gender of participants Method who identified as transgender could fur- Research Design ther be broken down into transgender men The current study employed a nonequiva- (N = 4) and non-binary gender identities lent control group design to compare the (N =11). The two comparison groups were perceptions towards police of LGBTQ and also matched such that the participants in non-LGBTQ participants and to determine both the groups presently live in the US or if those perceptions are correlated with have lived in the US for at least one year.

Spring 2018, Volume VII | 47 The average number of years spent in the formed consent form and participate in the US by the total population was 22.5 years, survey, the online survey took them to the while the number of years lived in the US questionnaires detailed below. Participants by the LGBTQ and non-LGBTQ ranged were given the option of discontinuing at from 1 to 64 and 2 to 50 respectively. any point in the survey. No monetary com- pensation was given to the participants for Procedure completing the survey. All procedures were All participants for this study were re- approved by the researcher’s home Institu- cruited online by the principal investigator tional Review Board. through the online survey site Survey Mon- key. The survey packet was prepared by the Measures principal investigator and consisted of the Perceptions of Police Scale (POPS): The following (in order): an informed consent POPS comprises two subscales and mea- form, a demographic survey, and two ques- sures the general attitudes toward police tionnaires: the Perception of Police Survey and the perceptions of police bias.50 Sub- and the Mental Health Inventory. Follow- scale 1 measures general attitudes toward ing this, the principal investigator posted police, with sample items including state- the survey on several listservs and social ments such as “Police are friendly” and networking websites in order to maximize “Police protect me.” Subscale 2 measures the participant pool. Through the informed perceptions of police bias, with sample consent form, the participants were notified statements including: “Police treat people of the purpose of the study and were reas- fairly” and “Police do not discriminate.” sured that their information would be kept The POPS yielded high reliability—with completely confidential and all measures overall reliability of 0.915 in the total scale, would be taken to protect their identities. and subscales 1 and 2 yielding reliability co- If the participants chose to sign the in- efficients of 0.906 and 0.866 respectively.

Sexual orientation/gender identity Total score on the Total score on the of the participants Perceptions of Mental Health Police Scale Inventory

Non-LGBTQ (i.e., Mean 25.11 65.71 heterosexual and N 47 43 cisgender) SD 5.873 17.618 LGBTQ Mean 37.51 61.67 N 41 36 SD 9.615 21.777

Unknown/undeclated Mean 43.75 61.67 N 4 4 SD 4.349 2.778

Total Mean 31.45 63.94 N 92 83 SD 10.134 12.123

Table 1: LGBTQ and Non-LGBTQ Participants’ Scores on the Perceptions of Police Scale (POPS) and the Mental Health Inventory (MHI)

48 | LGBTQ Policy Journal Sexual orientation/ Total score Total score Total score for Total score gender identity of for the for the the behavior for positive the participants anxiety depression control affective subscale subscale subscale subscale Non-LGBTQ

Mean 58.14 69.77 76.98 57.91 N 43 43 43 43 SD 23.766 19.547 18.521 18.842 Minimm 0 15 25 25 Maximum 100 100 100 85

LGBTQ Mean 54.33 64.03 71.39 57.08 N 36 36 36 36 SD 25.160 22.387 23.622 22.148 Minimm 8 15 25 10 Maximum 92 100 100 85

Table 2: Means of LGBTQ and non-LGBTQ Individuals on the Four Subscales of the MHI

Mental Health Perceptions of General Perceptions of Inventory Police Scale perceptions of bias police

Mental Health Inventory 1 -.278* -.266* -.281**

Perceptions of Police Scale — 1 .992** .868**

General perceptions of — — 1 .798** police

Perceptions of bias — — — 1

* Correlation is significant at the 0.05 level (2-tailed). ** Correlation is significant at the 0.01 level (2-tailed).

Table 3: Correlations between Overall Police Perceptions and the Four Mental Health Inventory Subscales

Spring 2018, Volume VII | 49 The POPS has been used with people of various racial groups51 and transgender and Results gender nonconforming populations.52 Results of the study indicate that there were Mental Health Inventory (MHI): In significant differences between the scores order to measure overall emotional function, of non-LGBTQ and LGBTQ participants in the Mental Health Inventory was used. As a their overall perceptions of police, t(64.343) part of the National Health Insurance Study, = 7.176, p < 0.001; in general perceptions the MHI, developed by Veit and Ware,53 is of police, t(62.093) = 6.816, p < 0.001; and a measure for evaluating mental health is- in perceptions of bias in police treatment, sues such as anxiety, depression, behavioral t(86) = 6.751, p < 0.001. Table 1 reports the control, positive affect, and general distress. mean scores of both groups of participants This instrument helps to measure the overall on both the POPS as well as the MHI, thus emotional functioning of an individual. The providing a summary of how each of the shorter version of the original 38-item MHI groups fared on the two measures. Lower includes 18 items, to which the respondent scores on the POPS indicate positive per- answers by choosing from a 6-point Likert- ceptions of police, while higher scores in- type scale. The measure can generally be dicate negative perceptions of police. As done without assistance and takes approxi- indicated in the table, the means of overall mately ten minutes. The MHI is easy to ad- police perceptions of the LGBTQ and non- minister and provides a quick assessment of LGBTQ participants are 37.51 and 25.11 re- both positive and negative facets of mental spectively, indicating that the perceptions health, not just psychopathology. The full- of police among non-LGBTQ participants length version of the MHI has a Cronbach’s are more positive than those existing among alpha that ranges from 0.63 to 0.93 for the the LGBTQ participants. subscales, 0.90 to 0.97 for the global scales A regression analysis with overall per- and 0.93 to 0.97 for the total score.54 This ceptions of police as the independent indicates that the scale has a good internal variable and overall mental health as the de- consistency. The MHI has been studied ex- pendent variable revealed that perceptions tensively in large populations, and comes of police significantly predicted overall with considerable evidence for its validity.55 mental health, B = -0.53, t(82) = -2.625, p = 0.01. Despite this, the model only explained Data Analysis 7.8 percent of the variance in the overall For the first hypothesis, a t-test between mental health. Thus, there are likely other the POPS scores of the two groups of par- mediating variables that contribute to the ticipants (LGBTQ and non-LGBTQ) was relationship between the two variables. performed to determine whether the per- In a preliminary correlational analysis, ceptions held by the two groups differ sig- there was a statistically significant correla- nificantly from one another. The second tion between overall perceptions of police hypothesis was answered by computing and overall mental health of the partic- measure of correlation between the scores ipants, r(82) = - 0.28, p = 0.01 (see table of the POPS and the MHI to determine 3). The negative correlation indicated that whether perceptions of police and general lower scores on the POPS were significantly mental wellbeing of the participants are in correlated with higher scores on the MHI, fact significantly correlated with one an- suggesting that when people have more fa- other. Furthermore, in order to understand vorable perceptions of police, they will also whether perceptions of police influence report more favorable mental health. mental health, a regression analysis was Results further indicate statistically done with POPS as an independent variable significant correlations between general and mental health as a dependent variable. perceptions of police and overall mental

50 | LGBTQ Policy Journal Perceptions MHI anxiety MHI MHI MHI of Police subscale depression behavior positive Scale subscale control affect subscale subscale

Perceptions of Police 1 -.282** -.270* -.264* -.162 Scale

MHI anxiety subscale — 1 .792** .756** .724**

MHI depression — — 1 .847** .780** subscale

MHI behavior control — — — 1 .749** subscale

MHI positive affect subscale — — — — 1

**. Correlation is significant at the 0.01 level (2-tailed). *. Correlation is significant at the 0.05 level (2-tailed)

Table 4: Correlations between Overall Police Perceptions and the Four Mental Health Inventory Subscales health, r(82) = - 0.27, p = 0.015; and between LGBTQ and non-LGBTQ people, with perceptions of bias in police treatment and LGBTQ people tending towards more neg- overall mental health, r(82) = - 0.28, p = 0.01 ative perceptions. It was also expected that (see table 3). There were also significant perceptions of police would be correlated correlations between overall perceptions of with mental health of the participants police and the four subscales of the Mental and that positive perceptions would cor- Health Inventory. As indicated in table 4, relate higher with positive mental health, overall police perceptions was significantly while negative perceptions would correlate correlated with anxiety, r(82) = - 0.28, p< higher with negative mental health. The re- 0.01; depression, r(82) = - 0.27, p = 0.01; and sults obtained from the study confirm both behavior control, r(82) = - 0.26, p = 0.01 of hypotheses. the participants. Perceptions of police were The two comparison groups (LGBTQ not significantly correlated with positive af- individuals and non-LGBTQ individuals) fect r(82) = - 0.16, p > 0.05. differed significantly from one another in terms of overall perceptions of police, gen- Discussion eral perceptions of police, and perceptions Per the two hypotheses of the study, it was of bias in police treatment. Since personal expected that there would be significant dif- experiences have been known to influence ferences in perceptions of police between perceptions,56 the differences in percep-

Spring 2018, Volume VII | 51 tions in the present study can likely be at- law enforcement and the criminal justice tributed to the vast differences in personal system. Perhaps police departments (and experiences that the two groups of individ- other institutions such as correctional set- uals have shared with the police. Perhaps tings, courthouses, and others) can offer LGBTQ people’s less favorable police per- trainings, workshops and information ses- ceptions are due to the historical trauma of sions where police officers are made aware police violence and bias throughout history. of LGBTQ issues. Perhaps they may learn Either way, results of the study align with about how their explicit and implicit biases procedural justice theory, which asserts negatively impact the ways that they treat that the manner in which a person is treated LGBTQ people (as well as people of other by authority figures determines how that historically marginalized identities). Po- person perceives any authority figures in lice departments may attempt to use more the future.57 community policing techniques, where Even though the mental health of the police are integrated into community or- two comparison groups did not differ sig- ganizations in organic, interpersonal, and nificantly, the study revealed significant nonthreatening ways, with an emphasis on correlations between perceptions of police LGBTQ members of the community. One and mental health. While mild in effect size, study has found that when community po- correlations indicate that negative percep- licing techniques are used, LGBTQ people tions of police are related to negative men- may actually view police to be favorable.59 tal health, while positive perceptions are Second, the results of the study indicate related to positive mental health. If LGBTQ that policies on all levels need to be more people hold negative perceptions of police LGBTQ-affirming—especially since nega- due to experiences of being discriminated tive experiences with police may be related against or abused,58 such experiences could to negative mental health. Given the many have an adverse effect on their mental obstacles LGBTQ people face from law en- well-being, especially susceptibility to anx- forcement (and in society in general), the iety and depression. Similarly, non-LGBTQ study demonstrates the importance of sys- people have more positive experiences with tems and institutions to be more mindful the police—potentially due to not experi- of how they provide services for LGBTQ encing discrimination based on their sexual people. Perhaps practitioners who work orientation or gender identities. Perhaps with LGBTQ people (e.g., educators, psy- they experience a greater sense of safety— chologists, social workers) need to be more which may potentially result in more posi- aware of resources to offer LGBTQ peo- tive mental health. However, it is important ple when they are targeted by violence or to note that the relationship between per- by police misconduct. Perhaps community ceptions of police and mental health is organizations may create or provide new purely correlational and not causal in na- and safe ways for LGBTQ people to report ture. Negative perceptions of police held by crimes—as a way of avoiding potential re- people adversely impact their mental well- traumatization from interactions with po- being in varying degrees, but do not cause lice. For example, the National Coalition poor mental health or vice versa. of Anti-Violence Programs describes how many LGBTQ survivors are more willing Implications for Policy, Practice, and to report their crimes to LGBTQ commu- Research nity organizations than they are to police, The present study has major implications and that therefore police reports are less for public policy and practice. First, re- representative of violence that LGBTQ sults highlight the need for more culturally people actually face.60 Not only can organi- competent services for LGBTQ people in zations like the National Coalition serve as

52 | LGBTQ Policy Journal safe havens for LGBTQ survivors, they can results of study may be less generalizable also provide anonymous data to their local to the greater LGBTQ population. Further, police departments, to increase more ac- LGBTQ people (e.g., gay men, , bi- curate reporting of crimes among LGBTQ sexual people, transgender, and queer peo- communities. ple) were all grouped together into a single Regarding future research, these results group for comparison with non-LGBTQ highlight the need for more studies on is- people. Even though individuals of the sues related to LGBTQ people’s experiences LGBTQ community may undergo experi- with police and the effects of such experi- ences of bias and prejudice in similar ways, ences on mental health. Although there has and even though they are almost always been a great deal of research on perceptions considered to fall under the same umbrella of police among the general population, as of sexual orientation, there may be individ- well as among various racial groups, future ual differences depending on their specific studies can aim to utilize larger samples of sexual orientation or gender identity, which LGBTQ participants, so that more accurate should be taken into account while deter- generalizations can be made about the pop- mining their perceptions of police or their ulation in general. Studies can also focus overall mental health. on understanding the influence of intersec- In conclusion, the results from this tionalities (race, gender, , etc.) study indicate that there is still much work on police perceptions, while also disaggre- to be done regarding LGBTQ interactions gating the data and examining differences with police officers, as well as the impact of among various sexual orientations and gen- those experiences on mental health. Policy- der identities within the LGBTQ umbrella. makers, researchers, and law enforcement Because the LGBTQ community is so di- officers themselves must recognize the verse, with many sexual orientations (gay, unique experiences that LGBTQ people lesbian, bisexual, queer, pansexual, etc.) have with the police and enact changes ac- and gender identities (transgender, cisgen- cordingly. If police officers are truly com- der, gender nonconforming, genderqueer, mitted to ensuring that justice prevails, etc.), it is important to disaggregate data. they must do everything in their power to For example, in keeping with the existing protect and serve all people, regardless of literature and the framework of procedural sexual orientation or gender identity. justice theory, a disaggregation of data will probably reveal that trans women or trans women of color specifically are the most at risk for police misconduct, given the high levels of violence they face in society at large. Future research should also focus on other variables that can be measured along- side the POPS—including quality of life, self-efficacy, help-seeking behaviors, and other variables that can affect the ways in which people perceive the police.

Limitations and Conclusion While the findings of the study were fruit- ful, there are some limitations to consider. First, due to the small sample size (N = 93), as well as the unequal number of partici- pants in the two comparison groups, the

Spring 2018, Volume VII | 53 org/10.1177/0095399706293989. 15 Orr and West, “Citizen Evaluations of Local End Notes Police.” 1 Amnesty International, “USA: Stonewalled: 16 Lorraine Mazerolle et al. “Procedural Justice, Police Abuse and Misconduct against Lesbian, Routine Encounters, and Citizen Perceptions Gay, Bisexual, and Transgender People in the US,” of Police: Main Findings from the Queensland 2005, https://www.amnesty.org/en/documents/ Community Engagement Trial (QCET),” Journal AMR51/122/2005/en. of Experimental Criminology 8, no. 4 (2012): 343-367, 2 Kevin L. Nadal, That's So Gay! Microaggressions doi:10.1007/s11292-012-9160-1. and the Lesbian, Gay, Bisexual, and Transgender 17 James D. Livingston et al. “What Influences Community, (Washington DC: American Perceptions of Procedural Justice among People Psychological Association, 2013). with Mental Illness Regarding Their Interactions 3 Nadal, That’s So Gay! with the Police?,” Community Mental Health 4 Amnesty Interntional, “USA: Stonewalled.” Journal 50, no 3 (2014): 281-287, doi:10.1007/ 5 Kevin L. Nadal et al. “Lesbian, Gay, Bisexual, and s10597-012-9571-5. Queer People's Perceptions of the Criminal Justice 18 Patricia Y. Warren, “Perceptions of Police System: Implications for Social Services,” Journal Disrespect During Vehicle Stops: A Race-Based of Gay and Lesbian Social Services 27, no. 4 (2015): Analysis,” Crime and Delinquency 57, no. 3 (2011): 457-481, https://doi.org/10.1080/10538720.2015.10 356-376. https://doi:10.1177/0011128708316177. 85116. 19 Brown and Benedict, “Perceptions of the Police.” 6 Christine R. Serpe and Kevin L. Nadal, 20 MacAlister, “The Law Governing Racial “Perceptions of Police: Experiences in the Trans* Profiling.” Community,” Journal of Gay and Lesbian Social 21 Huggins, “Traffic Stop Encounters.” Services 29, no. 3 (2017): 280-299, https://doi.org/10. 22 Joshua C. Cochran and Patricia Y. Warren, 1080/10538720.2017.1319777. “Racial, Ethnic, and Gender Differences in 7 Ben Brown and Wm Reed Benedict, “Perceptions Perceptions of the Police: The Salience of of the Police: Past Findings, Methodological Issues, Officer Race Within the Context of Racial Conceptual Issues, and Policy Implications,” Profiling,”Journal of Contemporary Criminal Policing: An International Journal of Police Strategies Justice 28, no. 2 (2012): 206-227, https:// and Management 25, no. 3 (2002): 543-580, https:// doi:10.1177/1043986211425726. doi.org/10.1108/13639510210437032. 23 Huggins, “Traffic Stop Encounters.” 8 Christopher M Huggins, “Traffic Stop Encounters: 24 Callanan and Rosenberger, “Media and Public Officer and Citizen Race and Perceptions of Police Perceptions of the Police.” Propriety,” American Journal of Criminal Justice 25 Yuning Wu, “Race/Ethnicity and Perceptions of 37, no. 1 (2012): 92-110, https://doi.org/10.1108/ the Police: A Comparison of White, Black, Asian pijpsm.2012.18135daa.005 and Hispanic Americans,” Policing and Society 24, 9 Roddrick Colvin, “Shared Perceptions among no. 2 (2014): 135-157, https://doi:10.1080/10439463. Lesbian and Gay Police Officers: Barriers and 2013.784288. Opportunities in the Law Enforcement Work 26 Brown and Benedict, “Perceptions of the Police.” Environment,” Police Quarterly 12, no. 1 (2009): 27 Jennifer (Jenephyr) Veronica James, “Attitudes 86-101, and Reality: The Impact of Perceptions of Police 10 Valerie J. Callanan and Jared S. Rosenberger, on Students’ Victimization Reporting Behaviors,” “Media and Public Perceptions of the Police: PhD diss., Indiana University of Pennsylvania, 2011, Examining the Impact of Race and Personal https://knowledge.library.iup.edu/etd/291. Experience,” Policing and Society 21, no. 2 (2011): 28 Amy I. Cass and Stacy L. Mallicoat, “College 167-189, https://doi:10.1080/10439463.2010.540655. Student Perceptions of Victim Action: Will Targets 11 David MacAlister, “The Law Governing Racial of Stalking Report to Police?,” American Journal of Profiling: Implications of Alternative Definitions of Criminal Justice 40, no. 2 (2015): 250-269, https:// the Situation,” Canadian Journal of Criminology and doi.org/10.1007/s12103-014-9252-8. Criminal Justice 53, no. 1 (2011): 95-103, https://doi. 29 James, “Attitudes and Reality.” org/10.3138/cjccj.53.1.95. 30 National Coalition of Anti-Violence Programs 12 Callanan and Rosenberger, “Media and Public (NCAVP), “Lesbian, Gay, Bisexual, Transgender, Perceptions of the Police.” Queer, and HIV-Affected Hate Crime Violence 13 MacAlister, “The Law Governing Racial in 2016,” 2016, https://avp.org/wp-content/ Profiling.” uploads/2017/06/NCAVP_2016HateViolence_ 14 Marion Orr and Darrell M. West, “Citizen REPORT.pdf. Evaluations of Local Police: Personal Experience 31 Mary Bernstein and Constance Kostelac, or Symbolic Attitudes?” Administration and “Lavender and Blue: Attitudes about Society 38, no. 6 (2007): 649-668, https://doi. Homosexuality and Behavior toward Lesbians

54 | LGBTQ Policy Journal and Gay Men among Police Officers,”Journal of Genderqueer People: A Review of the Literature,” Contemporary Criminal Justice 18, no. 3 (2002): 302- The Journal of Sex Research 53, no. 4-5 (2016): 328, https://doi.org/10.1177/1043986202018003006. 488-508, https://www.tandfonline.com/doi/ 32 Gary David Comstock, “The Police as abs/10.1080/00224499.2016.1142495?journal Perpetrators of Anti-Gay/Lesbian Violence,” in Code=hjsr20. Violence against Lesbians and Gay Men, ed. Gary 49 www.surveymonkey.com David Comstock (New York: 50 Kevin L. Nadal and Kristin C. Davidoff, Press, 1991), 152. “Perceptions of Police Scale (POPS): Measuring 33 K.T. Berrill, “Antigay Violence and Victimization Attitudes Towards Law Enforcement and Beliefs in the United States: An Overview,” in Hate Crimes: about Police Bias,” Journal of Psychology and Confronting Violence against Lesbians and Gay Men, Behavioral Science3, no. 2 (2015): 1-9, http://dx.doi. eds. Gregory M. Herek and K. T. Berrill (Newbury org/10.15640/jpbs.v3n2a1. Park, CA: SAGE Publications, 1992), 19-45. 51 Kevin L. Nadal et al. “Perceptions of Police, 34 Jane A. Younglove, Marcee G. Kerr, and Corey J. Racial Profiling, and Psychological Outcomes: A Vitello, “Law Enforcement Officers' Perceptions of Mixed Methodological Study,” Journal of Social Same Sex Domestic Violence: Reason for Cautious Issues 73, no. 4 (2017): 808-830, doi:10.1111/ Optimism,” Journal of Interpersonal Violence 17, no. josi.12249. 7 (2002): 760-772, https://doi:10.1177/0886260502 52 Serpe and Nadal, “Perceptions of Police.” 017007004. 53 Clairice T. Veit and John E. Ware, “The Structure 35 New York Civil Liberties Union (NYCLU), “Stop- of Psychological Distress and Well-Being in and-Frisk Data,” 2011, https://www.nyclu.org/en/ General Populations,” Journal of Consulting and stop-and-Frisk-data. Clinical Psychology 51, no. 5(1983): 730, http:// 36 Center for Constitutional Rights, “Stop and psycnet.apa.org/record/1984-02935-001. Frisk: The Human Impact; The Stories Behind 54 Veit and Ware, “The Structure of Psychological the Numbers, the Effects on Our Communities,” Distress.” 2012, https://ccrjustice.org/sites/default/files/ 55 V. Florian and Y. Drory, “Mental Health Inventory attach/2015/08/the-human-impact-report.pdf. (MHI)-Psychometric Properties and Normative 37 Center for Constitutional Research, “Stop and Data in the Israeli Population,” Psychologia: Israel Frisk.” Journal of Psychology 2, no. 1(1990): 26-35, http:// 38 Amnesty Interntional, “USA: Stonewalled.” psycnet.apa.org/record/1997-86031-001. 39 NCAVP, “Lesbian, Gay, Bisexual, Transgender, 56 Orr and West, “Citizen Evaluations of Local Queer, and HIV-Affected Hate Violence in 2016.” Police.” 40 Center for Constitutional Research, “Stop and 57 Livingston et al. “What Influences Perceptions of Frisk.” Procedural Justice?” 41 Center for Constitutional Research, “Stop and 58 Amnesty Interntional, “USA: Stonewalled.” Frisk.” 59 Wayne Gillespie, “Thirty-five years after 42 Kevin L. Nadal, Kristin C. Davidoff, and Whitney Stonewall: An exploratory study of satisfaction Fujii-Doe, “Transgender Women and the Sex Work with police among gay, lesbian, and bisexual Industry: Roots in Systemic, Institutional, and persons at the 34th Annual Pride Festival,” Interpersonal Discrimination,” Journal of Trauma Journal of Homosexuality 55, no. 4 (2008): 619-647, and Dissociation 15, no. 2 (2014): 169-183, https://doi. https://doi:10.1080/00918360802421759. org/10.1080/15299732.2014.867572. 60 NCAVP, “Lesbian, Gay, Bisexual, Transgender, 43 Nadal, Davidoff, and Fujii-Doe, “Transgender Queer, and HIV-Affected Hate Violence in 2016.” Women and the Sex Work Industry.” 44 Center for Constitutional Research, “Stop and Frisk.” 45 Nadal et al. “Lesbian, Gay, Bisexual, and Queer People’s Perceptions of the Criminal Justice System.” 46 Nadal, Davidoff, and Fujii-Doe, “Transgender Women and the Sex Work Industry.” 47 Vickie M. Mays and Susan D. Cochran, “Mental Health Correlates of Perceived Discrimination among Lesbian, Gay, and Bisexual Adults in the United States,” American Journal of Public Health 91, no. 11 (2001): 1869-1876, https://doi:10.2105/ ajph.91.11.1869. 48 Kevin L. Nadal et al. “Microaggressions toward Lesbian, Gay, Bisexual, Transgender, Queer, and

Spring 2018, Volume VII | 55

A Tale of Two Judgments: The Afterlives of a Defeat and a Victory for Queer Rights in India

Danish Sheikh

Abstract Within a period of six months in 2013 and 2014, the Indian Supreme Court delivered two crucial judgments relating to LGBTQI rights. The first, Suresh Kumar Koushal v. Naz Foun- dation, upheld the criminalization of homosexuality in the country and was seen as a deeply regressive move by the Court. The second, NALSA v. Union of India was heralded as a land- mark in creating a charter of constitutional rights for transgender individuals. The after- lives of both judgments have shown a more complex narrative than the instant reaction received by each accounted for. Koushal went on to inspire a range of energetic activism at multiple levels while also resulting in new approaches before the Supreme Court, while NALSA has suffered from implementation woes and spawned proposed legislation that threatens to undo the core of the judgment. This paper looks at the twin narratives of these judgments, giving us a window into how social movements have creatively used laws in mobilizing efforts, while also seeing the paralytic nature that a legal victory can have on effective mobilization.

Bio Danish Sheikh is an assistant professor at the Jindal Global Law School where he teaches courses on the intersections of gender, sexuality, literature and theatre. He has pre- viously worked with the Alternative Law Forum and the International Commission of Jurists, on research and advocacy relating to sexuality and gender. He is also a writer and playwright whose first book, Invisible Libraries, was shortlisted for the Jan Michalski Award, 2017.

Introduction This essay speaks about two significant in- remains ongoing. The second, National stances where members of the LGBTQ com- Legal Services Authority v. Union of India2 munity in India made use of the Supreme (hereinafter NALSA), was a wide-ranging Court as a forum to further constitutional petition about the state of transgender rights. The cause of action was very differ- rights in the country, asking the court to ent across the two cases. The first,Suresh enforce the constitutional rights of trans- Kumar Koushal v. Naz Foundation1 (hereinaf- gender persons across a range of fora. In ter Koushal) was a constitutional challenge this instance, the petition was filed in 2012, to an anti- where the litigation with the judgment of the Court delivered process spanned almost two decades and not two years later.

Spring 2018, Volume VII | 57 From the perspective of the original pe- titioners in each case, Koushal was a loss The Defeat of Koushal while NALSA was a win. The Koushal Court Section 377 and the Story of the Naz upheld the constitutional validity of the Litigation statutory provision that effectively crimi- Section 377 of the crimi- nalized intimate relations between LGBTQ nalizes “carnal intercourse against the order persons. The NALSA Court delivered a of nature.” While the words of the statute deeply empathetic judgment that provided do not explicitly target the LGBTQ com- a charter of rights for transgender persons munity, the provision has been used largely in the country including, significantly, a to persecute community members since its recognition of the right to self-identify inclusion in the Penal Code in 1860. The one’s gender regardless of the gender as- word “persecute” is important here: pros- signed at birth. The aftermath of both ecutions, where individuals are specifically judgments has shown a more complex nar- arrested or subjected to criminal proceed- rative than the immediate reaction to each ings under the law, are rare.4 Instead, it is a decision suggested. Koushal has become a more indirect form of harassment that the rallying cry for the movement that inspired law legitimatizes, whether in the manner of a range of energetic activism on multiple blackmail, institutional discrimination, or levels, including previously unprecedented state violence. 5 legislative intervention. Even the doors of The first attempt at challenging the the Supreme Court have not stayed shut constitutionality of Section 377 was in 1994, to the legal challenge, with a potentially when the human rights activist group AIDS groundbreaking curative petition3 on the Bhedbhav Virodhi Andolan (ABVA) filed a same matter holding the potential of trans- petition before the High Court.6 The forming the sphere of constitutional rights petition came in the wake of a 1994 survey in the country. Meanwhile, NALSA has that found that two-thirds of the inmates in suffered from implementation woes from Tihar Jail, India’s largest prison, had partic- the beginning, and is facing active threats ipated in homosexual activity. Recommen- from the very legislation it has purport- dations on making condoms available in the edly inspired. If the test of the judgment’s prison were rejected by the authorities, who success is the accessibility of legal gender felt this would be tantamount to legalizing recognition in the country, it is clear that homosexuality.7 ABVA’s petition attempted precious little has been achieved. If there to push for precisely such legalization, ar- has been a victory here, it is largely at the guing against the constitutional validity discursive level, in the realm of how the of Section 377 on a range of grounds and language of the judgment has been appro- asking for a complete repeal of the section. priated by civil society actors, even as little The petition ultimately languished in the has changed at the level of policy. Court for eight years before being silently Over the course of this essay, I will look disposed of8 at the trajectories of these cases, examining In December 2001, Naz Foundation, the journey from the filing of the petition an NGO working in the field of HIV/ AIDS through the declaration of the judgment, intervention and prevention and whose and the ways in which these judgments mandate included working with gay and have played out within the larger space of MSM9 individuals, filed a petition before the LGBTQ movement in the country. I the Delhi High Court challenging the con- will explore the different ways in which we stitutionality of Section 377.10 Represented might define the “success” of a judgment, by Lawyers Collective, an organization while exploring the ways in which civil soci- that provides human rights legal services, ety engages with the law. the petition made the case that Naz Foun-

58 | LGBTQ Policy Journal dation’s HIV/AIDS prevention efforts were sion in its judicial capacity, an application impaired by discriminatory attitudes ex- to the facts of a specific, pre-existing case hibited by state agencies towards sexuality would be necessary, and no such case ex- minorities. Unless the self-respect and dig- isted to form the basis for the petition. nity of sexuality minorities were restored As Dave argues, the government’s chas- by doing away with discriminatory laws tisement of queer Indian activists for not like Section 377, it would not be possible having a proper movement led in turn to to promote HIV/AIDS prevention in the an attempt to forge a temporary . community.11 Through meetings and dialogue, one of the In her ethnography of queer activism in major interventions was the creation of India, Naisargi Dave notes how the filing of Voices Against 377, a coalition of 12 nongov- the petition was met with a sharply divided ernmental organizations and progressive response by activists and lawyers working groups based in Delhi.14 The group saw it- on queer rights in the country.12 One level self as a point of intersection and dialogue of opposition was based on the fact that between various social movements that the many groups felt they hadn’t been con- groups represented, articulating a united sulted about this action that would affect voice against Section 377. the future of their work. Another critique After some procedural back and forth, of the petition was substantive—based on the petition went back to the Delhi High a discomfort with what was considered an Court in 2006 for its perusal.15 In this elitist positioning in that the petition was next round, another government minis- asking for sexual acts to be decriminalized try joined the fray, this time supporting in private. This left out the vast number of the petition: the Ministry of Health and individuals belonging to vulnerable socio- Family Welfare, through the National Aids economic groups who were unable to in- Control Organization (NACO), filed an habit a private space of any kind. Women’s affidavit noting that the enforcement of groups also opposed this focus on privacy, Section 377 contributed adversely to pro- given that a large element of their strug- liferation of risky sexual practices among gle was to challenge impunity within the MSM individuals. At this moment Voices private sphere. To go back to the right to Against 377 stepped into the fray, filing privacy in this context would add another an intervention petition in the matter. layer of privacy, essentially reinforcing the The intervention was significant in that it private sphere. brought lived experiences into the court- Even as debates raged on within the room: affidavits were submitted from a LGBTQ community, the state’s response range of individuals about their specific to the petition came in the form of an af- experiences of marginalization under the fidavit filed before the Delhi High Court by law. Meanwhile, two other parties opposed the Ministry of Home Affairs in September the petition: B.P. Singhal, a former politi- 2003.13 The affidavit, opposing the petition cian of the , and the filed by Naz Foundation, noted that the Joint Action Council Kannur, an HIV/AIDS law reflected the perceptions of society, denialist organization. and that Section 377 was introduced as a A two-judge bench of the Delhi High response to contemporary Indian values at Court, comprising Chief Justice A.P. Shah the time. It noted that society continued to and Justice S. Muralidhar, heard the final largely disapprove of homosexuality, a dis- arguments in the case over the month of approval strong enough to justify treating November 2008. Eight months later, on it as a criminal offence, even where adults 2 July 2009, the court delivered the Naz indulged in it in private. Significantly, it also Foundation v. Government of NCT of Delhi noted that, for a court to judge the provi- judgment.16 Consensual sexual acts between

Spring 2018, Volume VII | 59 adults in private, it declared, would be con- Suresh Kumar Koushal: The Supreme stitutionally protected and stay outside the Court’s Decision criminal ambit of Section 377. The court On 11 December 2013, the Supreme Court found that to criminalize LGBT individuals handed down the Suresh Kumar Koushal v. for their intimate sexual relations in this Naz Foundation decision.17 In a major blow manner was violative of the constitutional to LGBTQ individuals, the court reversed rights to privacy, equality, non-discrimi- the Delhi High Court’s decision and found nation, dignity, and health. The 105-page that Section 377 did not infringe on funda- document became an instant landmark, not mental rights guaranteed by the Constitu- just in terms of this final decision, but for tion. To reach this conclusion, the court the ways in which it pushed constitutional made a series of egregious errors in legal doctrine and inaugurated a new discourse reasoning. for imagining queer identity within the law. A large section of the judgment is de- This new discourse was one that moved voted to parsing appellate court interpre- away from the imagining of the homosexual tations of Section 377. The court traces the as a perverse individual, as seen in preced- contemporary interpretation of the section ing case law, and instead embraced queer to its colonial origins. It is evident from individuals with a language of dignity and unofficial transcripts that the judges were inclusiveness. greatly interested in the question of what During the same month, the judgment constituted “carnal intercourse against the was challenged through a petition filed be- order of nature.” Ultimately, this question fore the Supreme Court of India. The first remains unanswered, with the judges not- of the many petitioners was Suresh Kumar ing “from these cases no uniform test can Koushal, an astrologer, followed in quick be culled out to classify acts as carnal in- succession by religious organizations rang- tercourse against the order of nature.” At ing from the Apostolic Churches Alliance to the most, the court found whether an act the All India Muslim Personal Law Board fell within the ambit of the section could and the Krantikari Manuvadi Morcha. The only be determined with reference to the Delhi Commission for Protection of Child act itself and the circumstances in which it Rights joined a crowded case, which also was executed. One of the guiding principles included every party from the lower court in this regard could be the fact that most judgment—except, surprisingly, the Minis- of the cases prosecuted under the section try of Home Affairs. referred to nonconsensual and markedly These surging numbers were matched coercive situations. Given this, the judges by an increase in supporters on the Naz said that “we are apprehensive of whether Foundation side. In addition to the Naz the court would rule similarly in a case of Foundation, Voices Against 377, and NACO, proved consensual intercourse between a diverse set of voices filed interventions adults.”18 However, no effort was made to before the court. Parents of LGBT persons actually clear the ground on this front; in- from across the country came together stead, they ultimately noted that Section for an intervention, as did mental health 377 would apply irrespective of age and con- petitioners, teachers, law academics, and sent, and prohibit sexual conduct regardless Member of Parliament Shyam Benegal. of gender identity and orientation. In other In February 2012, final arguments began words, Section 377 could technically be ap- in this matter before the division bench of plied to heterosexual couples engaging in Justices G.S. Singhvi and S.J. Mukhopad- “carnal intercourse” as well. hyay and continued till the end of March The court offered a truncated analysis of 2012. The Supreme Court pronounced its the core constitutional arguments against verdict 21 months after the hearings ended. Section 377 under Articles 14, 15, and 21 of

60 | LGBTQ Policy Journal the , before dismissing to respond. Sonia Gandhi, the president of each peremptorily. In the process the court the Indian National Congress (the ruling also made jarring statements, with this one party in India at the time), made a plea to perhaps the most infamous: the Parliament to address the matter. Rahul In its anxiety to protect the so-called Gandhi, the vice president of the Indian Na- rights of LGBT persons and to de- tional Congress, noted that he agreed with clare that Section 377 IPC violates the the High Court verdict and that the ques- right to privacy, autonomy, and dig- tion was one of personal freedom, to be left nity, the High Court has extensively to individual choice. A number of political relied upon the judgments of other parties issued statements condemning the jurisdictions. judgment and its effects.20 Additionally, the National Human Rights Commission, After Koushal which had until then remained silent on The judgment came as a crushing defeat the issue, released a statement noting that to the movement and LGBTQ individuals “all people regardless of their sexual ori- at large. The highest appellate court in the entation or gender identity should be able country had, in no uncertain terms, seem- to enjoy their human rights.”21 Meanwhile, ingly ended a litigation battle that had gone discussion of LGBTQ issues received one of on for more than a decade. Furthermore, its biggest public platforms when Satyamev after four years of equal citizenship under Jayate, a popular TV show hosted by Bolly- the law, queer persons were now once again wood star Aamir Khan, ran an episode fo- placed within the category of unappre- cusing on LGBTQ lives. hended felons. This decision would mean Even as the central government drags that many other debates around the future its heels on the issue of decriminaliza- of queer rights relating to antidiscrimina- tion, advocacy efforts to create state-level tion or relationship recognition would again amendments to the law are underway. In have to recede into the background as the general, a state amendment to a central law focus returned to battling criminalization. cannot directly contradict the latter—if it At the same time, it is also the case that does, the amendment is held “repugnant” the backlash to the decision revitalized the and must receive presidential assent. How- movement. First, it pushed more public dis- ever, the manner in which Section 377 was course on the issue than ever before. Sec- interpreted by the Koushal Court allowed ond, it allowed for diverse conversations states enough freedom to amend it with- around queer rights and intersectional link- out falling foul of contradicting the central ages with different movements to emerge. law. The Koushal judgment refuses to define Finally, even the litigation process did not what acts constitute “carnal intercourse quite come to a halt, with lawyers forging against the order of nature,” instead hold- ahead to invoke different remedies before ing that such a determination should be the court. made on a case to case basis. In this realm of Immediate public reaction to the judg- ambiguity, state governments could append ment included a massive series of coordi- an explanation to the section that removes nated protests in 17 cities in India and 22 sexual intercourse between consenting other cities across the world. Termed the adults from the scope of criminality. Efforts Global Day of Rage Against Section 377, the to push legislatures on this point have been protests featured large gatherings of individ- ongoing in a number of states and have seen uals in each of the cities coming together to significant advances in at least one instance: condemn the judgment and demand repeal in 2017, the Transgender Policy approved by of the section.19 This energetic, public dis- the state of highlighted striking course also put pressure on the government down Section 377 as a crucial goal.22

Spring 2018, Volume VII | 61 Momentum has also been created be- the matter—the government did not join the hind reframing the entire debate as a process in this round. On 2 February 2016 broader antidiscrimination issue. There are another significant step in the life of the case practical and strategic reasons for this. On took place, with the three most senior judges the one hand, LGBTQ activists are dealing of the court essentially agreeing on the con- with a central government that is unfa- stitutional significance of the case, and thus vorable towards homosexuality. A crucial granting the matter leave to be heard before need is to strengthen alliances with other a constitution bench. A constitution bench is marginalized groups. Beyond that, there is a 5-judge bench of the court that hears mat- a stronger understanding about not seeing ters “involving a substantial question of law LGBTQ rights in a silo, instead considering as to the interpretation of this Constitution.” intersections with discrimination on the At this point, the constitution bench would basis of caste, religion, and disability, among likely have to first decide whether the matter others. Any conversation around a compre- in the Koushal case required reconsideration hensive antidiscrimination law allows for at all—were this to be the case, it would then advocacy for LGBTQ rights in new and var- ideally listen to constitutional arguments on ied spaces. Currently, this approach is at a the matter. Later in the same year, a group nascent stage. The Delhi State government of five gay and lesbian Indians filed another has expressed particular interest in a com- petition before the Court, arguing that they prehensive antidiscrimination bill, while a were directly affected by the reinstatement number of civil society consultations have of Section 377. The approach of the Navtej been held on bringing groups together to Johar petition, as it was named, was subse- discuss the idea. quently followed by a group of three trans- Even as these alternative strategies gender persons. These individuals in turn came into play, the legal route was not claimed a detrimental impact of Section 377 abandoned: soon after the judgment, a re- on their lives, despite the existence of the view petition against the decision was filed NALSA judgment. by eight parties, which notably included the Even as the Court delayed setting up a Union of India. The case received another bench to deal with these matters, it passed a blow when a two-judge bench dismissed the significant ruling that communicated disap- petition. The legal battle went on: the final proval of the Koushal decision. K.S. Puttas- step in this process was the possibility of wamy v. Union of India24 was a decision of the a curative petition being allowed. The cu- Supreme Court by a nine-judge bench that rative petition is a limited remedy through ruled on the contours of the right to privacy, which the court acknowledges that a par- explicitly noting that Koushal was a “discor- ticular judgment might require reconsid- dant note” in the history of the court, and eration to set right a miscarriage of justice: calling it out for its prejudice and its inaccu- “In such case it would not only be proper rate application of legal principles. but also obligatory both legally and morally In January 2018, the Supreme Court to rectify the error.”23 The curative is thus a passed an order regarding the Navtej Johar limited remedy based on the principle that petition, in which it held that the decision any technicality should not outweigh the in Koushal case required reconsideration, course of justice, even if the technicality referring the matter to a constitution here constitutes something as significant bench. What this ruling does is essentially and final as a legal decision. grant the request submitted in the curative On 22 April 2014, the Supreme Court petitions for the matter to be re-heard. It took an important step towards realizing the now remains to be seen whether the court potential of this principle by agreeing to hear rectifies a decision it has on its own accord a curative petition filed by seven parties in referred to as a misstep.

62 | LGBTQ Policy Journal ments to include transgender as a third The Victory of NALSA gender category in various identity docu- Legal Gender Recognition and the Story of ments, providing for reserved positions in the NALSA Litigation educational institutions and work places, For a long period of time, the only visibil- recognizing the right to marry and adopt, ity accorded to transgender persons was providing for free sexual reassignment sur- within the realm of criminal law. As regards gery and to recognize and grant transgender criminalization and harassment, transgen- individuals legal status as a third gender. der persons stood hypervisible before the It is this last relief that pointed to the law, constantly exposed to its violence. core flaw in the petition: the assumption Conversely, when it comes to any kind of that the entire transgender community civil entitlement, there has often been al- would like to identify as a ‘third sex’. The most complete invisibility. Among the in- problem with this is apparent when we con- struments by which the Indian state defines sider the status of persons who might want civil personhood, gender identity is a crucial to identify within the binary of male or fe- and unavoidable category. Identification male. An individual might be assigned the documents like a birth certificate, passport, male gender at birth but prefer to identify or ration card are required to enter into a as female or vice versa, instead of claim- variety of relationships in civil and official ing “transgender” or “third gender” as an society—to obtain driver’s licenses, and identity category. The petition ran the risk access legal service, employment opportu- of having a negative impact of actually forc- nities, university admissions, and essential ing the entire community to fit into the benefits, including health care. category of third sex /third gender without The only gender markers available to recognizing that there will be a section of individuals were male and female, with no the community who would prefer to be rec- explicit procedure outlining how a tran- ognized as male or female. Furthermore, sition within the gender binary would be the petition could disentitle transgender reflected on an identity document. A few persons from basic rights which they could state-issued documents such as passports otherwise have been entitled to under exist- at the national level and ration cards at ing laws as men and women. the state level did allow for identification A corrective to this came when other as “………” but even here there was no pre- petitioners joined the matter: Poojya Mata scribed standard test for identification. Nasib Kaur Ji Women Welfare Society, a As for the question of gender-affirming registered society and NGO, and Laxmi surgery, it was unclear whether even the Narayan Tripathy, a famous Hijra activist. post-operation certificate provided by a With the subsequent briefs, the scope of medical practitioner recognizing change of the case was broadened to include individ- gender had any legal status. uals who wished to transition from male to In 2012, the National Legal Services Au- female and vice versa. The case was heard thority of India, which was mainly founded before a two-judge bench of the Supreme to provide free legal aid services to disad- Court, comprised of Justice K.S. Panicker vantaged sections of society, filed a writ pe- Radhakrishnan, and Justice Arjan Kumar tition before the Supreme Court, asking the Sikri in 2013. court to issue a range of directions, starting with mandating the government to provide The NALSA Judgment rights to transgender individuals equal to On 15 April 2014, the court passed the those available to male and female citizens. NALSA judgment, pronouncing, “Moral fail- The petition then asked for more specific ure lies in society’s unwillingness to contain remedies, including directing the govern- or embrace different gender identities and

Spring 2018, Volume VII | 63 expressions.”25 With these words in its open- of transgender identity denied transgender ing paragraph, the court went on to craft a persons the equal protection of the law, dis- deeply inclusive document. Greeted with proportionately exposing them to harass- the kind of enthusiasm that Naz Foundation ment, violence, and sexual assault, whether received, the judgment was lauded not just at home, in public spaces, or by the police. for the specific remedies that it crafted for Further, the court located recognition of a historically marginalized community, but gender identity within Article 21 of the Con- also for its revitalization of a constitutional stitution. The right to life under Article 21 promise that the Court seemed to have for- encompasses the right to dignity. The legal gotten with Koushal. recognition of gender identity then lies at The Court defined transgender identity the heart of the right to dignity, given that in a broad manner: it noted that it was an gender constitutes the core of one’s sense umbrella term that could be used to describe of self along with being an integral part of a wide range of identities and experiences, a person’s identity. The court further re- “including but not limited to pre-operative, iterated that the right to personal liberty post-operative and non-operative transsex- guaranteed under Article 21 encompassed ual people” who did not identify with the individual personal autonomy. Such per- sex assigned to them at birth. Further, the sonal autonomy includes the positive right scope of the judicial definition included of individuals to make decisions about their identity claims where a person who did lives and to express themselves. This would not identify with the sex assigned to them then place self-determination of gender as at birth could opt for recognition as male, an integral part of personal autonomy, and female, or third gender. thus squarely within the realm of personal The harm of nonrecognition could occur liberty under Article 21. at two distinct levels: First, where a proce- In its operative section, the court listed dure for recognizing gender change did not an expansive set of directions for central exist, or said procedure was too cumber- and state governments to comply with. some, and second, where the law simply did The first two specifically related to gender not include the “third gender” as a distinct recognition: that a “third gender” category category. As far as the first level is concerned, be recognized within the constitutional the question of recognition is largely rooted as well as in the broader legal system, and in procedure—how many medical, psychi- that the government grant legal recogni- atric, and administrative hoops should a tion based on individual self-identification person have to jump through in order to be whether it be male, female, or third gender. accurately recognized as a legal citizen? The The other directions correspond roughly court noted that the test should be psycho- to the spheres of public health and sanita- logical: in this case, effectively, the individ- tion; socioeconomic rights; and stigma and ual’s own gender identity has to be given public awareness. Under the first category, primacy in determining gender. With regard the government was directed to take mea- to the second level, recognition becomes a sures to provide adequate medical care, problem when acknowledgment of a third separate dedicated HIV/serosurveillance gender/transgender identity is absent in measures, and separate dedicated public the law—which, as the court noted, was the toilets to transgender people. Under the case at just about every level. The legal sys- area of socioeconomic rights, the govern- tem, the court held, had to acknowledge a ment was asked to provide the transgender third gender category across the board. community various social welfare schemes In terms of the constitutional doctrine it and to treat it as a socially and econom- employed in addressing legal gender recog- ically backward class. In furtherance of nition, the court noted that nonrecognition this, the government was asked to provide

64 | LGBTQ Policy Journal affirmative action for transgender persons For all its promises, the NALSA judg- in educational institutions and public ap- ment has remained far from being imple- pointments. Finally, with respect to stigma mented, particularly if we are to look at its and public awareness, the court also asked core promise of legal gender recognition. the government to take steps to create pub- Part of this goes back to the fact that the lic awareness with regard to transgender judgment itself is not actually very clear persons; to take measures to restore their about the self-identification principle. For respect and place in society; and to seri- one, the text of the judgment clearly rec- ously address community problems such as ognizes what the judges call a psycholog- fear, shame, gender dysphoria, social pres- ical test for determining gender identity. sure, depression, suicidal tendencies, and While certainly moving away from a surgi- social stigma. cal model, it still doesn’t quite provide for The court’s significant, final move was complete autonomy over one’s legal gender an implicit recognition of its institutional identity in the way that a self-identification limitations to craft actual policy decisions model would entail. Second, as I will de- regarding the transgender community. tail below, the self-identification principle Thus, instead of trying to mandate its own stands contradicted on a more foundational recommendations for operationalizing level. legal recognition, it deferred to an executive The judgment, as noted earlier, man- body. In 2013, the Ministry of Social Justice dated that its directions should be carried and Empowerment constituted an expert out in accordance with the Ministry of So- committee to provide an in-depth study cial Justice and Empowerment’s Expert of the problems faced by the transgender Committee Report on Transgender Per- community and suggest governmental sons. The committee was constituted in measures. The committee report provided 2013, with the report releasing in January a detailed set of recommendations for ad- 2014, three months before NALSA. dressing transgender discrimination on var- The report contradicts itself on its ar- ious levels.26 The NALSA court held that the ticulation of the principle of self-identi- recommendations in this report were to be fication. On the one hand, it asserts the examined in light of the legal declarations it self-identification principle to the extent made and implemented within six months that the right to identification should stand of the decision. independent of any surgery or hormonal in- take. On the other, when it comes to actual After NALSA certification of identity, the report chooses The immediate reaction to NALSA was to recommend a more complex bureau- widespread jubilation from civil society, cratic apparatus than might be necessary. tempered with a degree of skepticism, nota- It suggests that a certificate of transgender bly from a segment of transgender activists identity should be issued by a state-level and individuals.27 The enthusiasm around authority, on the recommendation of a the judgment was attributed to two factors: district-level screening committee headed the immense possibilities that this decision by the collector/district magistrate and seemed to herald, and the relief of receiv- comprising a district social welfare officer, ing a decision of this nature from the same psychologist, psychiatrist, social worker, institution that delivered the Koushal ver- and two representatives of the transgender dict only four months prior. With NALSA, community. This certificate could then be the court had seemingly laid down a charter used as a basis for changing gender across of transgender rights that promised sweep- different identity documents. The issue ing reform. Would the state take up the with a process like this is how it whittles gauntlet? down the self-identification principle—

Spring 2018, Volume VII | 65 ideally represented by the kind of process not supported her documents with followed in Argentina, where an affidavit or a doctor’s certificate attesting to her self-endorsed of gender identity submitted having had gender affirming surgery. via a proper channel would suffice. Her lawyer who had accompanied her Meanwhile, the Government of India at- challenged this through mentioning tempted a stalling tactic to keep from imple- the Supreme Court’s guidelines in menting the judgment. It filed a clarification NALSA. When the officer’s stance re- petition relating to the judgment before the mained unchanged, they asked him to Supreme Court in October 2014. Besides simply change the name without no- noting that the six-month period for imple- tifying a change of gender—which the menting the judgment was inadequate, the officer again refused to do, insisting petition also addressed how the judgment that Jackie was a woman’s name.28 seemed to encompass gay, lesbian, and bi- The NALSA mandate is clear on the sexual identities as well, besides how it principle of self-identification. In that re- placed transgender individuals within the spect, asking for proof of a surgery, or any reservation scheme for Other Backward kind of medical intervention, constitutes a Classes. This petition was dismissed in June distinct violation of the law. And yet, this 2016 by the Supreme Court—more than remains part of the process not just at the two years after the NALSA decision. level of implementation, as it is in the case Over those two years, some states in the presented above, but even at times at the country drafted comprehensive state-level level of official policy itself. The passport transgender policies, though only the Ker- authority, for instance, allows individuals ala State Transgender Policy actually saw to choose their gender identity from across the light of day as legislation. Even in these three categories: male, female, and trans- instances, however, it was clear that there gender. At the same time, to support a re- was no specific procedure that was provided quest for a change in sex, the office requires to transition within the existing, binary gen- a certification from the hospital where der system or claim recognition as a trans- the person underwent “sex change oper- gender person. The account below from a ation.” The UNDP report which features UNDP report gives us an indication of the this account also details a disparity across discrepancy between principle and reality: different identity documents which have Early in 2016, a 24-year-old trans- divergent gender markers and procedures woman approached the Gazette of to change the documented gender—in the India. It had been two years since the instances where such a procedure exists at Supreme Court passed the NALSA v. all, that is. Union of India judgment that guaran- Even more troubling has been the trajec- teed transgender persons the right tory that has been followed by subsequent to their chosen gender identity as legislative interventions. In April 2015, the a constitutional right. In this case, Rajya Sabha, the upper house of Parlia- the transwoman wanted her given ment, unanimously passed the “Rights of name officially changed to her pre- Transgender Persons Bill, 2014,” a private ferred name, Jackie Lynn, along with member’s bill introduced by MP Tiruchi a change in her gender markers to Siva. The bill articulated a range of rights female. She approached the Gazette for the community. What it did not do was with an affidavit and newspaper ad- specifically provide a procedure to solve the vertisement relaying her change, only identification issues. to have the official refuse to make the In December 2015, the Ministry of So- requisite notification as mandated. cial Justice and Empowerment made avail- The reason that was given: she had able another draft of a union bill on the

66 | LGBTQ Policy Journal same subject matter on its website.29 This what flawed Ministry of Social Justice and particular bill relied largely on the frame- Empowerment mechanism. work of the earlier bill, with some crucial Since its introduction, the 2016 bill has amendments. Significantly, it put in place been met with sustained criticism from a structure for legal gender identity rec- transgender persons in particular, and ognition, along with a broad definition of members of civil society more broadly. A transgender identity. The definition noted Parliamentary Standing Committee was that a transgender person should have the subsequently set up to solicit comments option to choose either man, woman, or and study the effects of the bill in detail. transgender when it came to their legal The report of the committee, released in gender identity, and also clearly mentioned July 2017, proved to be a confused, contra- that the right to choose any of these options dictory document that recounted all the cri- stood independent of surgery or hormones. tiques of the bill but then dismissed many of The procedure for effecting such a change the same, often in a few lines.30 The report echoed the process recommended in the did, however, make a few useful recommen- ministry’s 2014 report, however, including dations. Sadly, the government proclaimed reliance on a psychologist or psychiatrist as that it would reject the entire Report and a certifying officer. proceed with passing the bill. The government asked for comments At this point, faced with ostensibly on this draft of the bill, if just for a limited rights-affirming legislation that would, in period. Civil society groups responded by practice, push the movement backwards sending in extended comments critiquing by several years, civil society activists came the bill following wide-ranging community together in large numbers. In one of the consultation. In July 2016, a significantly biggest displays of mobilization observed altered version of the bill was approved relating to the NALSA judgment and its af- by the Cabinet. The “Transgender Persons termath, protests were led in different cities (Protection of Rights) Bill, 2016” was a star- against the introduction of the Transgender tling setback on many counts. Amongst the Bill in Parliament.31 most shocking modifications made in the The protests finally attracted the at- draft was its deeply reductive definitions of tention of the government, although to transgender identity and persons: a limited extent. In a statement released (A) neither wholly female nor wholly following the gatherings, the government male; or (B) a combination of female noted, amongst other points, that the or male; or (C) neither female nor words “neither wholly male nor female” to male; and whose sense of gender does describe transgender persons would be re- not match with the gender assigned moved. This does not, however, do anything to that person at the time of birth, about the actual screening committee pro- and includes trans-men and trans- cess that still does not honor the self-iden- women, persons with intersex varia- tification principle.32 tions and gender-. Besides conflating intersex identity with Conclusion transgender identity, this definition effec- Why have the stories of Koushal and NALSA tively removes the option of individuals to departed from their original trajectories in identify as either male or female. Moreover, such ways? contrary to the previously proposed bill, it As I noted from the outset of this essay, fails to clarify that medical intervention is they are certainly very different cases. not a necessity in claiming recognition. As Koushal is a petition filed on a very specific for the process of certification of identity, point, asking for a limited remedy: the re- it once again adopts a version of the some- moval of LGBTQ persons from the ambit

Spring 2018, Volume VII | 67 of criminalization under Section 377, as far herent on the question of self-identification as consensual sex in private is concerned. as the laudatory reception the judgment NALSA on the other hand is vastly broader. received made it appear. The ambiguity in Indeed, the breadth of the judgment means parts of the judgment has even confused that it would have been nearly impossible other appellate courts: the Jackuline Mary to truly actualize many of its aspirations.33 v. State of TN decision of the Madras High Another point to note is the respective Court, for instance, argues that the NALSA stories of how the litigation actually pro- judgment does not recognize the rights of gressed. As one compares the narratives female to male transgender persons. of these two cases, it appears that the the If there is a victory to be seen in NALSA, longer duration of the Koushal litigation al- it is largely at the discursive level. The lowed for civil society mobilization at dif- judgment has certainly entered the lexicon ferent levels. This was a story that began of activists and lawyers, invoked at every with divided responses from the commu- juncture possible in an attempt to secure nity, before these different groups came to- rights for transgender persons. Meanwhile, gether to battle the government. Along the Koushal continues to cast a shadow over way, opinion on the issue was consolidated advocacy efforts even as it has re-energized and, increasingly, larger alliances forged. A and broadened them. Looking at the twin larger movement built up around the case narratives of these judgments gives us a as it made its way from the High Court to window into how the LGBTQ movement in the Supreme Court. This was a movement India has engaged with the law in mobiliz- that grew to involve extensive consultation ing efforts, while also helping us understand amongst a range of civil society actors who a bit more about law’s connection with so- eventually took a stand on the issue and cial change. It now remains to be seen what placed their voices before the court. the ultimate impact of these judgments will With NALSA, the time line was brief. be on the legal framework: whether trans- The initial petition filed by the Legal Ser- gender law takes the ultimate shape of the vices Authority was extremely limited in Transgender Bill, or the final decision in the its understanding of gender and had come Section 377 litigation. from a space of inadequate community con- sultation. Even when the case expanded to include more parties, there was little by way of community mobilization or consultation around the matter, and within two years of the initial petition, a judgment had been delivered. This lack of community organization and consultation relating to the litigation itself is particularly important because the central issue at the heart of the case re- mains contested amongst members of the transgender community. Not all transgen- der persons believe that self-identification should be completely outside the domain of a bureaucratized procedure, and there are prominent leaders who see no particular issue with the screening committees that the bill proposes. Further, it’s also clear that the NALSA judgment itself is not as co-

68 | LGBTQ Policy Journal our-initiatives/law-and-sexuality. End Notes 14 Voices Against 377, accessed 17 February 2018, http://www.voicesagainst377.org/. 1 Suresh Kumar Koushal v. Naz Foundation, 1 SCC 15 A review petition against this order met the 1 (2014). same fate later in 2004, following which a special 2National Legal Services Authority (NALSA) v. leave petition was filed in the Supreme Court. Union of India, 5 SCC 438 (2014). In February 2006, the Supreme Court passed an 3 Supreme Court Order in the matter of Curative order holding that the matter did indeed require Petition (C) Nos. 88-102 of 2014, 2 February 2016, consideration and could not be summarily accessed 16 February 2018, http://orinam.net/377/ dismissed as such. wp-content/uploads/2013/12/SUPREME_COURT_ 16 Naz Foundation v. Govt. of NCT of Delhi. Curative_Order_Feb2_2016.pdf. 17 Koushal v. Naz Foundation. 4 See Alok Gupta, “Section 377 and the Dignity 18 Koushal v. Naz Foundation, paragraph 38. of Indian Homosexuals,” Economic and Political 19 See Coalition for Sex Workers and Sexuality Weekly 41 (2006): 4815- 4817. Minority Rights, “Dignity First,” 2014, accessed 17 5 Gupta, “Section 377.” February 2018, http://altlawforum.org/campaigns/ 6 Arvind Narrain, Queer: Law, Despised Sexuality, dignity-first-one-year-of-resistance-to-re- and Social Change, (Bangalore: Books for Change, criminalisation-of-lgbt-lives/. 2004). 20 The issue of decriminalization even made its 7 See Suparna Bhaskaran, Made in India: way into the manifestos of the Aam Aadmi Party Decolonizations, Queer Sexualities, Trans/National and the Communist Party of India (Marxist). Projects (New York: Palgrave Macmillan, 2004), Notably, the Bharatiya Janata Party, which is now 72. the party in power in the country, was silent on 8 Narrain, Queer. the matter. 9 Men Having Sex with Men, see, e.g., “LGBT 21 “National Human Rights Commission Wants Section 377,” Lawyers Collective, 23 November Section 377 Modified,”DNA India, 13 December 2010, accessed 16 February 2018, http://www. 2013, http://www.dnaindia.com/india/report- lawyerscollective.org/vulnerable-communities/ national-human-rights-commission-wants- lgbt/section-377. section-377-modified-1934603. 10 Writ Petition at 7-27, Naz Foundation v. NCT of 22 DH News Services, “State’s Transgender Policy Delhi, 160 DLT 277 (2009), https://www.scribd. Favours Repealing Section 377,” , 27 com/document/24710240/Naz-Foundation-v- October 2017, accessed 17 February 2018, http:// Government-of-NCT-of-Delhi-Et-Ors. www.deccanherald.com/content/639578/states- 11 The specific question of HIV/AIDS prevention transgender-policy-favours-repealing.html. supplied the grounds with which Naz Foundation 23 Rupa Ashok Hurra v. Ashok Kumar Hurra, 4 SCC approached the Delhi High Court, represented 388 : AIR 2002 SC 1771 (2002). in the petition by the argument that Section 24 K.S. Puttaswamy v. Union of India, Writ 377 was violative of the right to life, given that Petition (Civil) No. 494 of 2012 (Supreme Court it drove homosexual activity underground, of India, 24 August 2017). thus jeopardizing HIV/AIDS prevention efforts. 25 NALSA v. Union of India, paragraph 1. However, the petition also argued against the 26 Report of the Expert Committee on the Issues constitutionality of Section 377 on a number of relating to Transgender Persons, Ministry of other grounds. It made a case that the prohibition Social Justice and Empowerment (MSJE), of certain private consensual sexual relations Government of India, 27 January 2014, accessed violated the right to privacy guaranteed within 14 March 2018, http://socialjustice.nic.in/ the ambit of the right to liberty under Article writereaddata/UploadFile/Binder2.pdf. 21; that the criminalization of nonprocreative 27 See, for instance, Gee Imaan Semmalar, “Gender sexual relations was unreasonable and Outlawed: TG Supreme Court Judgment on Third arbitrary and therefore violative of Article 14; Gender and its Implications,” Roundtable India, that it further violated the prohibition of sex 19 April 2014, https://roundtableindia.co.in/index. discrimination under Article 15; and finally, that php?option=com_content&view=article&id=7377. the criminalization of predominantly homosexual See also Tarunabh Khaitan, “NALSA v Union conduct curtailed the enjoyment of liberties of India: What Courts Say, What Courts Do,” guaranteed under Article 19. Law and Other Things, 1 May 2014, http:// 12 Naisargi Dave, Queer Activism in India: A Story in lawandotherthings.blogspot.ca/2014/05/nalsa- the Anthropology of Ethics (Duke: Duke University v-union-of-india-what-courts-say.html, which Press, 2012). acknowledges that the judgment may not be 13 “LGBT Section 377,” Lawyers Collective, 14 implemented adequately, but that it still has July 2017, http://www.lawyerscollective.org/ value.

Spring 2018, Volume VII | 69 28 Danish Sheikh, Venkatsen Chakrapani and Arvind Narrain, “UNDP Report Legal Gender Recognition in India,” forthcoming March 2018. See also Kaushik Gupta, “More on Gender Change Legalities,” Varta, 20 January 2015, accessed 16 February 2018, http://varta2013.blogspot. in/2015/01/more-on-gender-change-legalities.html. 29 The Rights of Transgender Persons Bill, 2015, Parliament of India, http://www.prsindia.org/ uploads/media/draft/Draft%20Rights%20of%20 Transgender%20Persons%20Bill%202015.pdf. 30 Forty-Third Report, Standing Committee on Social Justice and Empowerment (2017-2017), MSJE, Government of India, 2017, accessed 16 February 2018, http://www.prsindia.org/uploads/ media/Transgender/SCR%20Transgender%20 Persons%20Bll%202016.pdf. 31 See Monideepa Banerjie, “LGBTQ Communities to Protest in Front of Parliament Today against Bill,” NDTV, last modified 17 December 2017, accessed 16 February 2018, https://www.ndtv.com/ india-news/lgbtq-communities-to-protest-in-front- of-parliament-today-against-bill-1788717. “LGBTQI People Take to Streets against Proposed Bill,” , 18 December 2017, accessed 16 February 2018, http://www.thehindu.com/news/ cities/Thiruvananthapuram/lgbtqi-people-take-to- streets-against-proposed-bill/article21830377.ece. 32 Eram Agha, “Government Accepts Standing Committee Recommendations on Transgender Persons, Amends Definition,” News 18, 14 December 2017, accessed 16 February 2018, https:// www.news18.com/news/india/government-accepts- standing-committee-recommendations-on- transgender-persons-amends-definition-1604835. html. 33 Indeed, even those who have celebrated the judgment have taken note of this point. See Khaitan, “NALSA v. Union of India.” Building Bridges, Not Walls: Intersectional Analysis and the Next Frontier in the Corporate Equality Movement

Nii-Quartelai Quartey, Lani Fraizer, Gabby Miramontes

Abstract In recent years, we have seen a backlash to what had become a more LGBTQ-affirming America. The current national climate includes heightened support for laws that essentially give government and private businesses a license to discriminate based on sexual orienta- tion; repeal of healthcare and employment nondiscrimination protections; and increase in hate crimes, including the then-largest mass shooting in US history at an LGBTQ nightclub in Orlando, Florida.1 Each of these issues has inherent effects on employee recruitment, re- tention, and performance and on individual and collective efforts to create an organizational culture where all employees can thrive without fear of retaliation, retribution, or being unaf- firmed in the workplace. While “executive culture” has traditionally focused on returns for stockholders at the expense of their broader stakeholders, complicating social responsibil- ity efforts, corporate America’s LGBTQ engagement has helped to create a paradigm shift2 through company-supported LGBTQ employee resource groups, business resource groups, volunteerism, philanthropy, and public policy advocacy efforts, that together have helped to make corporate America a critical ally in the movement for LGBTQ equality. The social un- rest in the United States on issues related to race, ethnicity, age, gender, sexual orientation, and status are challenging corporate leaders to demonstrate solidarity and be a lifeline to traditionally marginalized communities. At the same time, corporate activism on LGBTQ rights is being elevated as a civil rights issue among others all at once, causing a demand for increased competencies in intersectional analysis.

Bios As a trusted strategic partner and community advocate, Nii-Quartelai Quartey brings leaders together to build powerful networks of inclusion committed to a more fair and just society for all. As the current Senior Advisor and National LGBT Liaison at AARP, he serves as a strategic advisor to the Senior Vice President of Multicultural Leadership, in addition to serving in a consultative enterprise-wide role charged with building national awareness and deepening community engagement to advance AARP’s social impact agenda through an intersectional approach. As a social entrepreneur, LGBTQ affairs subject matter expert, and corporate social responsibility professional, Dr. Quartey continues to advance his scholarship and research dedicated to examining and advancing the influence of corporate executives on LGBTQ rights.

Lani Fraizer’s work focuses on examining underpinnings of human capacity building as values, philosophy of life, and beliefs about the nature of learning in developing talent from

Spring 2018, Volume VII | 71 perspectives of makers in social change. As an Associate Professor and Chair of Interna- tional Learning Global Partnerships at Pepperdine GSEP, she teaches at the cross-section of leadership, social innovation, and technology and serves as Director of International Learning for APAC and EMEA-based Country Delegations. Dr. Fraizer serves as Schol- ar-in-Residence at the Yunus Center in Pathumthani, Thailand—a collaboration between Nobel Laureate Muhammad Yunus and the Asian Institute of Technology advancing a vi- sion to harness the power of social business to create a poverty-free world.

Gabriella Miramontes is passionate about human capacity development and leadership advocacy, bringing nonprofit experience in strategy, leadership development, organiza- tional effectiveness, and portfolio management in ECE, K-12 and higher education. She champions driving high-stakes change leadership, project execution, building partnerships, and leadership advisement. As a professor, Dr. Miramontes teaches in the Organizational Leadership doctoral program at Pepperdine GSEP.

Introduction The , the larg- harder and smarter to change laws, hearts, est LGBTQ civil rights organization in the and minds in order to truly be perceived as United States, recently announced that a re- LGBTQ affirming brands, industry leaders, cord 609 of the largest US companies scored and welcoming places for diverse talent to a perfect 100 percent on their annual Corpo- contribute and grow. rate Equality Index (CEI) workplace equality With the rise of increasingly multicul- survey,3 up by nearly 20 percent compared to tural communities and intergenerational the year before.4 Since its launch in 2002, the workplaces, and with growing awareness of CEI has become a cross-industry assessment pervasive sexual violence across industries, of LGBTQ inclusive standards, policies, and it’s unclear how the work being led by cor- best practices in LGBTQ-affirming corporate porate equality champions is reaching the leadership of US Fortune 1000 companies. traditionally marginalized within LGBTQ Given the continued struggle for LGBTQ communities and grappling with the effects legal protections throughout the United of what’s known as “compound discrim- States and around the world, the latest CEI ination.” LGBTQ rights do not exist in a report highlights a great achievement and vacuum and are but one element of a more should be celebrated as nothing short of pervasive social construct. As such, com- significant. A recent report, for instance, by pound discrimination takes into account NPR, the Robert Wood Johnson Foundation, race, class, gender, age, and immigration and the Harvard T.H. Chan School of Public status, thus creating a more complex view Health, indicated that of corporate social responsibility. Imagine One-third of LGBTQ people say what it might have felt like to participate in the biggest problems they face are the 1960 sit-in protest6 at a segregated lunch discrimination based in laws and counter at Woolworth store in Greensboro, government policies, while 43% say North Carolina as protest spread across the discrimination based on individ- South during the civil rights movement. ual-level prejudice is the biggest Woolworth’s company policy was to “abide problem. Another 23% say that both by local custom,” which meant keeping forms of discrimination are equally a Black and White patrons separated. Crit- problem.5 ical press over time negatively impacted their business until the manager of the These notions suggest that executive Greensboro store quietly changed policy champions of LGBTQ equality must work and integrated the lunch counter. Imagine

72 | LGBTQ Policy Journal if the brave activist challenging the status aspects of society. Highly polarized, polit- quo at the segregated lunch counter were ically charged cultural discourse around is- Black, gay, and undocumented. In this sce- sues including same-sex marriage, serving nario, they would be a triple minority and openly in the military, and discrimination a compelling example of the compound in healthcare, among others, have served discrimination still faced by many LGBTQ as divisive social issues, preventing the people across America and around the development of standards, practices, and world. When corporate awareness, engage- policies that affirmatively protect LGBTQ ment, and philanthropic efforts are con- people from discrimination. But from sciously or unconsciously racially biased, 2008 to 2016, the US LGBTQ movement gendered, heteronormative, homophobic, secured a string of hard-won local, state, or xenophobic, companies abdicate the so- and federal legal protections, on the coat- cial responsibility their executives claim to tails of the cautious but LGBTQ-affirming champion. Obama presidency and landmark Supreme Court cases like Obergefell v. Hodges, United Corporate America and History of States v. Windsor, and Pavan v. Smith. Well- LGBTQ Activism organized grassroots and donor activ- Howard R. Bowen, celebrated by academics ism played an outsized role in these as the originator of the study of corporate achievements, as did a growing number of social responsibility (CSR), proposed an LGBTQ-affirming champions and allies in analytical framework for CSR over 60 years corporate America—such as private and ago in his still-relevant book Social Respon- publicly-traded Fortune 1000 companies. sibilities for the Businessman (SRB), related to The election of as pres- the proper role of businesses in the Amer- ident of the United States, the institution ican economy. At this point, America was of a fully Republican-controlled legislative shifting from a largely agrarian society to branch, the effective reinstatement of a a more industrial society. Organizational conservative bent to the US Supreme Court performance and efficiency were becoming following the death of Antonin Scalia, and more valuable in this emerging economy. the crystallized gains of Republicans in a Modern corporate activism on LGBTQ is- majority of state legislatures and governor- sues dates back to 1975, when AT&T became ships have effectively given socially con- the first Fortune 500 company to adopt a servative officials and leaders many more nondiscrimination policy for employees paths to advance an anti-LGBTQ agenda based on sexual orientation. In 1987, AT&T across the country and around the world.9 launched LEAGUE, the oldest LGBTQ em- Anti-LGBTQ social agendas across the US ployee resource group in the nation.7 Al- are characterized by their support for a vari- most ten years later, in 1996, Disney went ety of anti-LGBTQ policies: gay conversion public with its early support for gay rights therapy; the elimination of LGBTQ non- by promoting safe and welcoming theme discrimination protections; rolling back parks in what they called “gay day.” In re- healthcare protections for patients with sponse, a number of groups, including the pre-existing conditions, including HIV; and largest American Protestant denomination, rolling back of fair housing protections that the Southern Baptist Church, launched an prevent discrimination based on sexual ori- ultimately unsuccessful eight-year boycott entation, among others. Transparent and to pressure Disney to change this policy.8 vocal conservative support of LGBTQ in- Over the last 60 years, the LGBTQ justice has energized LGBTQ communities rights movement in the United States has and their allies, while testing the espoused grown into a beacon of hope for a more values of corporate leaders on LGBTQ is- safe, welcoming, and legal existence in all sues. As a result, this conservative resur-

Spring 2018, Volume VII | 73 gence has exposed the inherent politics of of the movement for social and economic corporate activism on LGBTQ issues in an justice. This is why executive champions increasingly intergenerational and multicul- and emerging corporate leaders, partic- tural workforce and consumer marketplace. ularly those representing traditionally Addressing America’s national lead- marginalized communities, might play an ership vacuum on issues related to anti- essential role in efforts to mitigate the ef- discrimination has increasingly become a fects of compounded discrimination, by business imperative for industry leaders of influencing their companies to develop an the future. Excerpts from an internal Gen- intersectional analysis of employee engage- eral Electric memo, which was subsequently ment, philanthropy, and public support for published by Politico, quoted then-CEO Jeff social issues. Immelt saying, “Companies must be re- silient and learn to adjust to political vol- Making the Case for Intersectional atility all over the world. Companies must Analysis have their own foreign policy and create While issues of racial and economic justice, technology and solutions that address local gender justice, immigrant justice, elder jus- needs for our customers and society.”10 tice, and LGBTQ justice are not in fact mu- Given his level of prominence, the intended tually exclusive, some findings12 suggest that and unintended consequences of such a many of the companies that scored a perfect proposition should give both scholars and 100 on the CEI are governing their compa- practitioners great pause. Note the mention nies and responding to external challenges of customers, then society. Companies do as if these justice issues are mutually exclu- not exist to purely help society; they exist sive. In order to better support traditionally to make profits from as many customers marginalized communities whose legal and as possible. This creates a great risk for the voluntary protections are currently at risk misuse of LGBTQ human rights discourse of rollback, and indeed to cast the widest to advance purely profit-driven motives— possible net of support around vulnerable at the expense of LGBTQ-affirming social stakeholders during these turbulent times, change—through standards, practices, and corporate equality champions would be policies including, but not limited to, public wise to perform an intersectional analy- policy. In addition, statements like Immelt’s sis of their work. In addition, because the can be interpreted broadly as a call to action LGBTQ community itself spans a variety for more, not less, applications of business of social issues and identities, it offers ex- models that define success based on people, ecutive champions a unique opportunity to environmental, and profit indicators. support multi-issue justice movements. Re- Adding an intersectional analysis— alizing this opportunity requires executive meaning an examination of the compound champions to deliver on the need for more insights and social identities held by in- dynamic executive leadership in the form dividuals that belong to more than one of a fully integrated cross-cultural and indi- traditionally marginalized community11— vidual segment approach, aligned under one would be a helpful layer of analysis to this overarching strategy, propelled by an inter- proposed business model. Doing so would sectional analysis that is intent on co-creat- be an important next step for executive ing more socially responsive organizations. champions’ efforts to remain cognizant of The marketing industry commonly refers to the trade-offs between LGBTQ rights and this as a total market approach.13 the rights of other disenfranchised groups. Affirmative corporate activism includes Race, ethnicity, gender, age, class, sexual positive and proactive standards, practices, orientation, and ability are omnipresent. To and policies that recognize and support pretend otherwise undermines the integrity LGBTQ stakeholders in corporate Amer-

74 | LGBTQ Policy Journal ica publicly and holistically. This includes ual and institutional level. The final tenet consumers in the communities where they calls for the promotion of social justice and do business. The notion of affirming con- social change as an ethical imperative. As sumers’ whole selves includes embracing emphasized by Carbado, Crenshaw, Mays, more than one social identity in response and Tomlinson, “What is most important is to any given challenge or opportunity their understanding as a work in communities might be facing. Affirming progress… animated by the imperative for the whole self should account for the in- social change which involves focusing less tersection of the various social identities on what intersectionality is but more on and constructs. The following four tenets what intersectionality does.”16 Applying an of intersectionality offer a helpful theoret- intersectional analysis to our work should ical framework. They provide a framework be a means to a socially just end, not purely a in which executive champions can begin theoretical exercise, that improves the lives grounding their analysis when considering of the traditionally marginalized within and how they might develop their engagement across traditionally marginalized groups. on LGBTQ issues: (1) centering the expe- In recent years, a critical mass of exec- riences of people of color; (2) complicating utive champions in corporate America have identity; (3) unveiling power; and (4) pro- taken on a more affirming role in the LGBTQ moting social justice and change.14 movement.17 However, being that identity is Historically, the first tenet links back to the the sum of many parts, including gender, origins of intersectional scholarship—draw- sexuality, lived experience, and socio-eco- ing largely upon the experiences of African nomic status, many of these champions stop American women—and involves shift- short of solving the challenges experienced ing the center of analysis to those on the by their LGBTQ stakeholders who belong to margins. multiple traditionally marginalized groups. The intersectionality perspective fur- For example, African American LGBTQ in- ther reveals that the individual’s so- dividuals are more highly concentrated in cial identities profoundly influence the 29 states without LGBTQ employment one’s beliefs about and experience protections (18 percent) than in the 21 states of gender. As a result, feminist re- with legal protections (12 percent). This searchers have come to understand leaves nearly 900,000 African American that the individual’s social location LGBTQ workers with limited legal options as reflected in intersecting identities to address experiences of discrimination must be at the forefront in any inves- based on sexual orientation and gender iden- tigation of gender.15 tity in the workplace.18 A recent data brief on race and jobs at high risk of automation also Intersectional feminism was born out of found that 27 percent of African American the persistent oppression and limited op- service workers are concentrated in the 30 portunities compounded by the race, class, occupations at highest risk for worker dis- and gender, among other identities, of Afri- placement through workplace automation.19 can American women. Complicating identity If one were an African American LGBTQ is about recognizing the diversity within a service worker in one of the 29 states with- particular group and entangled oppressions out LGBTQ employment protections, for such as racism, sexism, classism, or hetero- instance, one may be more vulnerable to sexism. Unveiling power refers to how struc- being fired and to scarcity of work because tures of inequality come together to form of one’s actual or perceived sexual orienta- a larger structure, and that understanding tion. Unions with a heteronormative, ho- how these structures act in combination mophobic, or xenophobic organizational can reveal how power operates on individ- culture may not accept individuals because

Spring 2018, Volume VII | 75 of their race, sexual orientation, or gender • Be LGBTQ or be an ally—someone identity. Employee resource groups may not who does not identify as LGBTQ but be organized to be a resource to employees instead identifies as a supporter or with more than one social identity. The mul- champion of LGBTQ interest and is- tiple challenges of navigating an unwelcom- sues. Because this study sought to ing work environment, LGBTQ-unfriendly identify leadership best practices of community, competition for scarce work, LGBTQ employee resource group lead- and skills training one may not have access ers in championing LGBTQ issues in a to illustrate how and why an intersectional corporate setting, it identified LGBTQ analysis can help executive champions be employee resource group leaders at US more socially responsive in an increasingly Fortune 1000 companies. This selec- multicultural workforce. tion included, but was not limited to, senior managers and executives with Methodology internal or external responsibilities How does one affirmatively apply intersec- related to LGBTQ engagement. Thus, tional theory in the struggle for LGBTQ jus- the population selected for this study tice from a position of power, influence, and comprised LGBTQ employee resource authority in corporate America? How does group leaders under the age of 75 who one lead employees and consumers navi- work for US Fortune 1000 companies gating LGBTQ issues at the intersection of that scored a perfect 100 percent score so many other injustices20—such as racism, on the Human Rights Campaign 2016 sexism, ageism, and xenophobia? To begin Corporate Equality Index and serve as to distill initial answers—and develop new a formal or informal LGBTQ employee hypotheses—identifying leadership prac- resource group leader. tices that advance affirmative corporate -ac • Possess a bachelor’s degree at tivism on LGBTQ issues is paramount. minimum. The central actors this qualitative re- • Provide direct leadership to a publicly- search study focuses on are LGBTQ em- traded corporation in roles such as ployee resource group leaders who have community relations, government af- managed to navigate organizational chal- fairs, supplier diversity, communica- lenges and advance LGBTQ-affirming -ac tions, human resources, or executive. tivism through the power and influence This included those who directly lead of corporations. This study explored the or manage others with such responsi- strategies and practices of these leaders bilities, such as those in matrix orga- by examining “perceptions of the world nizations where one may be consulted in which they live in and what it means to on projects but may not be fiscally re- them”21 through semistructured interviews. sponsible or accountable for executing The sharing of these lived experiences “en- the work. able[s] professionals to learn about the Criteria for exclusion were also con- importance of their stories and the inter- sidered; which are the factors that did not pretive nature of their work. This empow- meet qualifications for inclusion mentioned ers professionals to see how the personal above. If there was no evidence of a relation- and professional are connected in stories ship to the company’s LGBTQ employee re- of practice that are shared.”22 The following source group on the company’s website or characteristics were identified as criteria for LinkedIn, for instance, the individual was identifying qualified study participants: excluded from the study. • Be a male, female, or gender noncon- To ensure that a variety of corporate forming person between the ages of 30 executives and senior managers were rep- and 75. resented in the study, a method called pur-

76 | LGBTQ Policy Journal posive (or purposeful) sampling23 was also US corporate activism on LGBTQ rights, implemented. This approach is designed to it is critical to understand the influence of intentionally ensure a mix of subjects with LGBTQ employees. Although a limitation, diverse experiences to inform the research. the results provide better understanding of It also allowed the gathering of in-depth LGBTQ employee resource group leaders knowledge and information from a small and their “relationship to things, people, yet knowledgeable sample.24 To further en- events, and situations”27 within the corpo- sure a diverse sample, maximum variation,25 rate environments they operate in and thus a method used for developing criteria in provides a springboard for those in posi- advance to further increase the extensive tional power to lead on LGBTQ issues. variety of participations (e.g., from a wide The following additional factors and as- range of work settings and geographies) sumptions were also considered. was implemented. For instance, in this 1. It was assumed that this study’s partic- study, participants were selected from ipants would respond to all interview employees at the top 20 Fortune-ranked questions with openness, candor, and companies—as rated by Human Rights minimum bias. Campaign’s Corporate Equality Index in 2. It was assumed that those questioned 201626 and from across geographies in the were organizational leaders wielding United States—who served in a role or had influence and authority on the topic capacity to influence a role that demon- of LGBTQ corporate activism. The strates public commitment efforts to the respondents selected ideally held po- LGBTQ community. sitions of leverage and impact during Thirty participants meeting these criteria the development and growth of their were selected for the initial subject pool. Of public posture and policies related to these, 25 research subjects were asked to par- LGBTQ protections. ticipate in the study, but only 13—nine males 3. The study is presumed to have created and four females—accepted the request to all questions with an objective mind be interviewed. All participants requested and free of prior hypothesis bias.28 to remain anonymous. Five participants 4. The appropriateness of a qualitative came from the financial services industry, study was also considered, specifi- two from the telecommunications industry, cally phenomenological methodology two from the tech industry, one from the using semistructured interviews. This food and beverage industry, one from the approach worked best for this study public utilities industry, one from the auto because it ensured that the findings industry, and one from the management of the data would more likely describe consulting industry. Five participants held a participants’ experiences and not an leadership role in their company employee interpretation from the researcher’s resource group (ERG) or business resource perspective. group (BRG), while eight participants con- 5. The selected methodology provided sider themselves executive champions of the researcher the tools needed to set LGBTQ issues. All of the participants were aside his or her own experiences in current employees of largely publicly traded order to provide a new perspective to US Fortune 1000 companies. the phenomenon being studied.27 6. Sample size was considered, specifi- Limitations cally as it relates to those appropriate Although this study was limited to LGBTQ for the research methodology selected. champions in a leadership role in corpo- In this phenomenological research rate settings, this study acknowledges that study, literature served as a guide to de- in order to best examine best practices in termine sample size, which suggested a

Spring 2018, Volume VII | 77 variety of options, from a range of 3 to to understand and gain understanding 10 participants,30 to 6 participants,30 of LGBTQ employee resource group to as many as 25 participants.31 For the leaders within the corporate environ- purposes of this study, a sample of 13 ments they operate in. carefully selected participants served as the source of data for this study, well Results within the criteria posited by guiding The focal point of this article and this study literature. involved the following research question: 7. Reported challenges27 in qualitative “What common strategies and practices approaches were also investigated, do LGBTQ Employee Resource Group Di- such as those pertaining to the need rectors employ to advance affirmative cor- for broad philosophical assumptions porate activism on LGBTQ issues?” This and careful selection of participants. qualitative study collected essential data These challenges were addressed by using semistructured interviews on the (1) clearly defining the population experience of each research participant re- and carefully selecting the sample lated to influencing corporate activism on who would participate in the study; LGBTQ issues. Each interview was tran- (2) ensuring that researcher experi- scribed, and each transcript was then re- ences and biases were clearly iden- viewed several times in an effort to identify tified prior to the start of the study themes, workplace standards, and recom- using bracketing,27 a process of set- mended best practices with potential rela- ting aside one’s beliefs, feelings, and tionship to identified literature. perceptions, such as through a private These study’s findings were then coded journal, and (3) outlining the interpre- according to a predefined three-step in- tive and theoretical frameworks that ter-rater reliability data analysis process guide the study—for instance, seeking which included the transcribing, reading,

INTERVIEW QUESTION 1 - CODING RESULTS N=13 MULTIPLE RESPONSES PER INTERVIEWEE 14 13 12

10 9 8

COUNT 6 5 4 2 2 1 0 Company Visability Accountabil- Culture ity Visionary Share Public Leadership Opinion

THEMES

Figure 1: Themes related to unique opportunities or challenges

78 | LGBTQ Policy Journal memoing, and coding of data collected from challenge in articulating how their company semistructured interviews. Responses were aspires for LGBTQ inclusion to show up in not mutually exclusive. The interviewees their work as a company. By “shape public could mention one, two, or all five themes opinion,” research respondents commonly identified. As data was analyzed, the fol- meant the opportunity or challenge in shar- lowing five themes or workplace best stan- ing LGBTQ-affirming actions openly and dards and practices emerged: (a) company publicly. culture, (b) visibility, (c) accountability, (d) Among participants, company culture visionary leadership, and (e) shape public and company priorities were a top prior- opinion (see figure 1). ity in LGBTQ corporative activism efforts. By “company culture,” research respon- These findings are consistent with liter- dents commonly meant the opportunity ature by organizational change scholars or challenge in having intentional culture and theories asserting that organizational change efforts led by a group of committed culture is a critical factor for developing employees or highly influential company common strategies and practices.32 When leaders. By “visibility,” research respon- asked about what standards and practices dents commonly meant the opportunity govern their organization in terms of ad- or challenge in having tangible evidence of vancing affirmative corporate activism for espoused and affirming support of LGBTQ LGBTQ issues, for instance, the majority of issues. By “accountability,” research respon- research participants spoke about company dents commonly meant the opportunity or priorities and executive leadership creating challenge in having a designated group or a cascading effect in the workplace environ- defined process to hold the organization ment that shape the standards, practices, accountable for progress on LGBTQ issues. and norms that govern their organization. By “visionary leadership,” research respon- Additional insights also surfaced which in- dents commonly meant the opportunity or forms recommended workplace standards

INTERVIEW QUESTION 2 - CODING RESULTS N=13 MULTIPLE RESPONSES PER INTERVIEWEE 14 12 10 10

8 7 5

COUNT 6 4 3 2 1 0 Company Executive LGBT ERG Human Don’t know Priorities leadership Leadership Rights Activism

THEMES

Figure 2: Themes related to standards and practices.

Spring 2018, Volume VII | 79 and practices: (a) company priorities, (b) champions. Their organizational cultures executive leadership, (c) LGBTQ ERG lead- may resist, and support for an intersectional ership, and (d) human rights activism (see analysis may be at times inadequate. figure 2). According to organizational culture In terms of what does or does not make scholar Edgar H. Schein, there are three their organizations an ideal workplace en- dimensions of organizational culture: un- vironment, findings indicated participants derneath the surface there are basic as- attributed this to company priorities and sumptions of shared values and norms, at executive leadership. These findings are the surface level there are espoused values also consistent with tensions between that are typically shared through formal critics of social responsiveness and the es- statements and organization-wide com- poused social contract between the busi- munications. The outermost dimension ness community and society.33 This means consists of behaviors and artifacts that are that, in order to attain a minimum standard tangible manifestations of the organiza- of social responsibility, organizations have tional culture. The intersectional analysis to enact policies, practices, and procedures being proposed in this article should be to keep discrimination from being inflicted as multidimensional as Schein’s organiza- on LGBTQ people. However, the standard tional culture model. In an effort to achieve is not just about keeping bad things from this, one such approach to consider is a happening. It’s also about prioritizing the modified version of AARP’s Multicultural progress leaders aim to make. Leadership Model35 whereby executive champions organize their work into five Conclusion and Recommendations bold moves: (1) connecting to community, How can executive champions of LGBTQ (2) driving awareness, (3) strengthening corporate activism better understand how organizational readiness, (4) enhancing the to embrace intersectional analysis in order stakeholder experience, and (5) thought to develop competencies that strengthen leadership. AARP, the largest nonprofit their leadership ability to cocreate organi- organization in the world with 38 million zations that are more socially responsive? members, represents the interest of Ameri- Neither culture nor leadership can be un- cans over 50 years old. This year, AARP will derstood by themselves. celebrate its 60th anniversary in ways that On the one hand, cultural norms recognize that the face of Americans over define how a given nation or organi- the age of 50 is increasingly transforming. zation will define leadership—who To this end, AARP recognizes the need to will get promoted, who will get the align its business and engagement model to attention of followers. On the other serve multicultural Americans over the age hand, it can be argued that the only of 50, even though the majority of its cur- real thing of importance that leaders rent membership is not multicultural. do is create and manage culture; that In AARP’s Multicultural Leadership the unique talent of leaders is their Model, connecting to community refers to ability to understand and work with creating a sustained presence in multicul- culture; and that it is an ultimate act tural communities, with a focus on health of leadership to destroy culture when security issues, financial security issues, it’s viewed as dysfunctional.34 and opportunities for personal fulfillment. Driving awareness refers to increasing The demand for affirmative corporate ac- awareness about your organization’s social tivism on LGBTQ justice, gender justice, responsiveness to multicultural audiences, racial justice, immigrant justice, and elder thought leaders, and the public. This could justice issues may overwhelm executive mean developing an annual multicultural

80 | LGBTQ Policy Journal research agenda, building an ongoing in- these same workers and consumers find tegrated national campaign customizable themselves vulnerable to additional harm for local affiliates, or incorporating multi- related to other identities. These real-time cultural populations into policy research, challenges create a demand for best prac- analysis, and evaluation. Strengthening tices in intersectional leadership, a form organizational readiness refers to using in- of leadership that should exist to publicly dividual cultural insights and multicultural demonstrate and solve systemic social and insights to purposefully incorporate the economic inequality within organizations lived experience of traditionally marginal- that espouse values of diversity, inclusion, ized communities into the design, execu- belonging, and interdependence. tion, and communications of everything Based on research findings, the follow- your organization does. This means fore- ing should also be considered as recom- casting, tracking, and analyzing multicul- mended workplace standards and practices: tural performance against goals to enhance (1) cocreate, (2) be visible, and (3) be ac- enterprise performance. Enhancing the countable. Cocreating a dynamic and sup- stakeholder experience is inclusive of but portive workplace culture that acts locally not limited to consumers. This means, for but thinks globally is an enormous oppor- example, developing staff competencies to tunity in current workplace environments. effectively communicate to multicultural Other participants referenced a real-time audiences in-language and in-culture. It is culture shift within their companies with a deliberate effort to develop value proposi- optimism where although “a cultural trans- tion by increasing the relevancy of an orga- formation [is] taking place… [the old boy nization’s programs, advocacy, information, network is alive but it’s being shaken up products, and services to traditionally mar- at different levels of hierarchy in the com- ginalized communities. Thought leadership pany.”36 However, to varying degrees, most refers to increasing collaboration outside of the study’s respondents indicated some of an organization’s echo chamber by ad- tension in their workplace environment re- vancing ideas and perspectives to promote lated to social hierarchy and homogenous efforts to become more socially responsive racial, ethnic, and gendered opportunities to the opportunities and unmet needs of as a challenge, especially in the context of traditionally marginalized communities. “building a diverse talent pool.”37 These While AARP matures in its intersec- insights underscore the challenge of mul- tional analysis of such a large constituency, ticultural leadership. “Leadership as a dis- other industry leaders would be wise to re- tributed function is gaining ground, which visit their business and engagement model. leads to the possibility that anyone who fa- Fluid stakeholder engagement, strategic cilitates progress toward desired outcome communication, external giving, and the is displaying leadership.”38 This means a development of mutually beneficial joint critical mass of employee resource group initiatives alongside national partners leaders, business unit leaders, executive with a strong community presence are all leaders, and trusted external partners out- strategies that can and must be employed side of an organizational echo chamber play in order to attain a minimal level of social an outsized role in cocreating a dynamic responsibility in this political moment. In and supportive workplace environment the current national political context, the that positions an organization to lead the practice of thinking globally and acting lo- future. cally will challenge corporate America to From an opportunities perspective, be consistent in their response to attacks visibility in the workplace seems to offer on the rights of the LGBTQ workers and employees permission to bring all of them- consumers, and to recognize that many of selves to work. Nine participants saw visi-

Spring 2018, Volume VII | 81 bility as a unique opportunity or challenge cision-making framework, before they miss in their workplace. For instance, P5 states: the pivotal opportunity to make a positive I grew up in the South, and it’s still lasting impression on their future leaders sad for me to hear about folks that and consumers. can’t be open in their workplace be- cause they don’t have protection. For Acknowledgement me, being out was a decision I made Special thanks to Pepperdine GSEP Profes- … I had a woman manager that was sor and Associate Dean of Education Farzin out and that gave me the courage to Madjidi for his research counsel. be out in my career, in part because I didn’t see any repercussions for her being out at work.39

P1 also articulated the following visibil- ity challenge: “It’s always hard to quantify the value add of LGBTQ inclusion. We’re a more invisible constituency and we’re more difficult to count compared to His- panics, women, and .”40 Participants also saw as an opportunity to drive accountability to the highest levels of leadership in their companies, as in some organizations it “is only found in the lower half of the corpo- rate pyramid.”38 Thusly, findings suggest that sustaining a company culture that is accountable and attentive to needs as in- dividual parts and the sum of all parts41 is important for investments in strengthening organizational readiness. Overall, these workplace standards, rec- ommended best practices, and aforemen- tioned efforts intended to contextualize the need for a paradigm shift toward a more in- tersectional analysis. Such an approach can fundamentally strengthen corporate lead- ers’ ability to cocreate organizations that are more socially responsive. Performing such an analysis is both a moral and busi- ness imperative, as nearly 100 million mil- lennials, who make up the most diverse and LGBTQ-affirming generation in American history, take to the helm as leaders and con- sumers. “They are more accepting of gen- der equality, gay rights, racial blending, and immigration than any other generation.”42 Embracing this multicultural shift requires executive champions of LGBTQ rights to adopt an awareness, engagement, and de-

82 | LGBTQ Policy Journal 14 Susan R. Jones, “Authenticity in Leadership: Intersectionality of Identities,” New Directions End Notes for Student Leadership 2016, no. 152 (2016): 29- 1 Lizette Alvarez and Richard Perez-Pena, 30, http://onlinelibrary.wiley.com/doi/10.1002/ “Orlando Gunman Attacks Gay Nightclub, yd.20206/abstract. Leaving 50 Dead,” New York Times, 12 June 2016, 15 Shield, “Gender: An Intersectionality https://www.nytimes.com/2016/06/13/us/orlando- Perspective.” nightclub-shooting.html. 16 D.W Carbado et al. “Intersectionality: Mapping 2 Edgar Schein, Organizational Culture and the Leadership, 4th ed., (: John Wiley & Movements of a Theory,” Du Bois Review Sons, 2010). 10, no. 2 (2013): 303-312, https://www. 3 Allison Turner, “HRC Releases Annual Corporate cambridge.org/core/journals/du-bois-review- Equality Index with Record 609 Companies social-science-research-on-race/article/ Earning Perfect Scores,” Human Rights intersectionality/1E5E73E8E54A487B4C Campaign, 9 November 2017, https://www.hrc. CFE85BB299D0E6. org/blog/hrc-releases-annual-corporate-equality- 17 Davis, “What’s Driving Corporate Activism?.” index-609-companies-earn-perfect-sco. 18 Amira Hasenbush et al. “LGBTQ Americans 4 Turner, “HRC Releases Annual Corporate Face Greater Social and Economic Disparities Equality Index.” in South, Midwest, and Mountain States,” 5 NPR, Robert Wood Johnson Foundation, and Williams Institute, 18 December 2014, Harvard T. H. Chan School of Public Health, https://williamsinstitute.law.ucla.edu/press/ “Discrimination in America: Experiences and press-releases/lgbt-divide/. Views of LGBTQ Americans,” 22, https://www. 19 Kristen Broady, “Race and Jobs at High Risk .org/documents/2017/nov/npr-discrimination- to Automation,” Joint Center for Political and lgbtq-final.pdf. Economic Studies, 18 December 2017, 1-7, http:// 6 Jerry Davis, “What’s Driving Corporate jointcenter.org/sites/default/files/Race%20 Activism?,” and%20Jobs%20at%20High%20Risk%20to%20 New Republic, 27 September 2016, Automation%2012-18-17%2011_30%20am.docx- https://newrepublic.com/article/137252/ 2_0.pdf. whats-driving-corporate-activism. 20 NPR, Robert Wood Johnson Foundation, and 7 Mark Patterson, “Celebrating LGBTQ History Harvard T. H. Chan School of Public Health, Month—All Year Long,” 05 October 2016, “Discrimination in America: Experiences and http://about.att.com/inside_connections_blog/ Views of LGBTQ Americans,” 22-23. lgbt_history. 21 Darren Landridge, “Phenomenology and 8 Davis, “What’s Driving Corporate Activism?” Critical Social Psychology: Directions and 9 Michael D. Shear and Charlie Savage, “In One Debates in Theory and Research,” Social and Day, Trump Administration Lands 3 Punches Personality Psychology Compass 2, no. 3 (2008): against Gay Rights,” New York Times, 27 July 2017, 1126-1142, http://onlinelibrary.wiley.com/ https://www.nytimes.com/2017/07/27/us/politics/ doi/10.1111/j.1751-9004.2008.00114.x/full. white-house-lgbt-rights-military-civil-rights-act. 22 Arnold Danzig and Kathleen C. Harris, “Building html. Competence by Writing and Reflecting on Stories 10 Edward-Isaac Douvere, “GE CEO Practice,” Journal of Educational and Psychological Immelt knocks Trump on climate Consultation 7, no. 2 (1996): 197. change,” Politico, 29 March 2017, https:// 23 J. W. Creswell, Research Design: Qualitative, www.politico.com/story/2017/03/ Quantitative, and Mixed Methods Approaches, 2nd trump-climate-change-immelt-236671. ed., (Thousand Oaks, CA: SAGE Publications, 11 Stephanie A. Shield, “Gender: An 2003), 147. Intersectionality Perspective,” Sex Roles 59, nos. 24 Stephen Isaac and William B. Michael, 5-6 (2008) 59: 301-311, https://link.springer.com/ Handbook in Research and Evaluation: A Collection article/10.1007/s11199-008-9501-8. of Principles, Methods, and Strategies Useful in 12 Nii-Quartelai Quartey, “Corporate Activism the Planning, Design, and Evaluation of Studies In the Age of LGBTQ Equality: The Promise and in Education and the Behavioral sciences, 3rd ed., Limitations of the Modern Executive Champion (San Diego: Educational and Industrial Testing on LGBTQ Rights,” EdD diss., Pepperdine Services, 1995). University, 2018. 25 John W. Creswell, Qualitative Inquiry and 13 Bill Duggan, “What is Total Market? AHAA Research Design: Choosing among Five Approaches, Helps Provide A Definition!” Association of 3rd ed., (Los Angeles: SAGE Publications, 2012). National Advertisers, 2 May 2014, http://www.ana. 26 Turner, “HRC Releases Annual Corporate net/blogs/show/id/30414. Equality Index.”

Spring 2018, Volume VII | 83 27 Janice M. Morse and Lyn Richards, README First for User Guide to Qualitative Methods, 3rd ed., (Thousand Oaks, CA: SAGE Publications, 2013) 28 T.K. Das and Bing-Sheng Teng, “Cognitive Biases and Strategic Decision Processes: An Integrative Perspective,” Journal of Management Studies 36, no. 6 (199): 757–778, doi:10.1111/1467-6486.00157. 29 John W. Creswell, Research Design: Qualitative, Quantitative, and Mixed Method Approaches, 4th ed., (Los Angeles: SAGE Publications, 2014). 30 Morse, J. M. (1994). Designing qualitative research. In N. K. Denzin & Y. S. Lincoln (Eds.), Handbook of qualitative inquiry (pp. 220-235). Thousand Oaks, CA: Sage 31John W. Creswell, Qualitative Inquiry and Research Design (1998) SAGE Publications. 32 Edgar Schein, Organizational Culture and Leadership, 3rd ed., (San Francisco: John Wiley and Sons, 2004), http://www.untag-smd.ac.id/files/ Perpustakaan_Digital_2/ORGANIZATIONAL%20 CULTURE%20Organizational%20Culture%20 and%20Leadership,%203rd%20Edition.pdf. 33 J.L. Campbell, “Why Would Corporations Behave in Socially Responsible Ways? An Institutional Theory of Corporate Social Responsibility,” Academy of Management Review 32, no. 3 (2007): 946-967. 34 Schein, Organizational Culture and Leadership,” 3rd ed., 11. 35 AARP Inc., Multicultural Leadership Model, 2017. 36 P4, interview by author, 5 March 2017. 37 P8, interview by author, 5 March 2017. 38 Schein, Organizational Culture and Leadership, 4th ed. 40 P1, interview by author, 10 February 2017. 41 P2, interview by author, 14 February 2017. 42 Eric Greenberg with Karl Weber, Generation We: How Millennial Youth Are Taking Over America and Changing Our World Forever (Emeryville, CA: Pachatusan, 2008), 21; 38, http://bit.ly/2EAjiZ2. LGBTQ Servicewomen in the Women’s Army Corps during the Second World War

Mary Claire Phillips “It was a good battalion”

Abstract This article seeks to uncover the ways in which the Women's Army Corps fostered an LGBTQ community during the Second World War. This paper offers an analysis of how the military changed its response to female queer personnel in light of changing wartime needs and how those changes served as a foundation for treating future LGBTQ servicemen and women. The evidence offered in this article relies heavily on archived Military disciplinary files and first hand accounts from LGBTQ WAC Service Women.

Bio Mary Claire Phillips will graduate with a Bachelor of Arts in Government and History this May at the University of Texas at Austin. She is in the Liberal Arts Honors Program and will continue her research on LGBTQ Women's History in the 1940s into a Honors Thesis. During her time as an undergraduate, she participated in the Archer Fellowship in Wash- ington DC and the Frank Denius Normandy Scholar Program on WWII. She interned at the State Offices of Rep. Chris Turner and Sen. Wendy Davis, as well as the History & Public Policy Program at the Wilson Center.

Introduction The United States military upholds princi- are drawn to military service at twice the ples of respect and fair treatment to its ser- rate of cisgender people.1 vice members and in turn, service members The military as a safe harbor for those are honored in American society. An unin- who serve is not a new phenomenon. tended consequence of these noble princi- Throughout American history, the armed ples is that the military became a safe space forces have been a social equalizer, where a for people in marginalized communities to farm boy with no education could advance exist, and even flourish. This was described over a Harvard-educated man. One war in in 2017 by a transgender veteran of the particular had a tremendous equalizing United States Air Force, Landon Marchant, impact, especially for women; the Second in response to the announcement of the World War saw women’s independence United States government’s transgender grow in tandem with job opportunities in military ban. Marchant wrote that the val- the military.2 ues of “integrity first, service before self, A lesser-told story about the impact of and excellence in all we do” demand re- the Second World concerns spect, and explain why transgender people how women’s entrance into the armed

Spring 2018, Volume VII | 85 forces pushed conventional understandings The primary documents that do exist of gender and sexuality. can be divided into two categories: those A particularly illustrative example can acknowledging LGBTQ presence, and those be found in a women’s branch of the United written by LGBTQ authors themselves. States military known as the Women’s Army Documents in the first category were Auxiliary Corps, turned Women’s Army obtained from military literature at the San Corps (WAC), which was established in Francisco LGBTQ Archives and the Na- the 1940s. The WAC provides a fascinating tional Archives at College Park, Maryland. case study of how the US military’s attitude These documents outline protocol concern- towards queer women evolved over the ing sexual hygiene and penalties, so provide course of the war. some insight into the existence of LGBTQ This paper uses primary source material women from an official point of view. obtained from government archival records Documents in the second category were to track this evolution: from the liberal atti- mainly found at the Library of Congress’s tude employed by the military in 1943, to the Veterans Voices Project, which contains a stricter policies introduced as the war years collection of oral histories from living vet- drew to a close. erans . While there are no accounts from The WAC case study demonstrates that self-identifying LGBTQ Women’s Army the transgender service members affected Corps veterans (hereafter referred to as by the Trump administration’s proposed WACs), there are several testimonies about ban are only a recent chapter in a story the presence of lesbians in the WAC (in- dating back decades. The military has long cluding their punishments). Although not grappled with how to handle gender- and as prevalent as the accounts of heterosexual sexuality-diverse service members. The WAC veterans, there are some primary ac- archives paint a quintessential American counts from LGBTQ service women in both story that is not so different from the sto- the LGBTQ and National Archives.3 ries painted by US military propaganda In addition, several documentaries from at the time: a story of women fighting for the 1970s and 80s collected and recorded their country and finding a community they interviews for the benefit of future genera- never thought possible. At this crucial mo- tions, including Word is Out (1979) and Be- ment for gender equality in the US, is there fore Stonewall (1984). something that current policy makers can It should be noted that these sources, learn from the past? while providing rich anecdotes as to queer female culture in the WAC cannot be used Research Methodology for estimating the population of queer The analysis in this paper is based on the woman in the US military—such figures do limited primary documents that directly not exist. refer to lesbian or queer women in the Finally, the term “queer” is used in this United States military in the Second World paper as an inclusive term referring to all War, and specifically in the WAC. While non-straight actors, including those who firsthand accounts of lesbian, gay, bisex- may have participated in non-straight re- ual, trans, and queer (LGBTQ) women are lationships but never self-identified as rare, this paper draws on firsthand accounts homosexual. from queer voices, rather than solely rely- ing on documents written with a heter- “Freedom from Fear”: Beginning of onormative lens. Official military records Queer Female Culture are also sparse, probably because penalties The WAC was an organization ripe for queer for homosexuality were often informal or cultures to blossom. Much like the newly disguised. formed “gayborhoods” of the era, army

86 | LGBTQ Policy Journal bases were far away from the prying eyes and jargon emerged; words such as “dyke” of disapproving family and often brought and “queer” became terms of endearment WACs near the city centers where gay clubs and identity, and gatherings were referred thrived.4 While on the homefront economic to, ironically, as a “gay time.”9 As a show of opportunities, such as factory jobs, had solidarity, queer women would whistle the opened up for women, the WAC promised tune of the “Hawaiian War Chant,” which adventure and a hands-on experience to included lyrics about a “gay gathering.”10 advance the war effort. This appealed to Queer women learned a new secret lan- women of all backgrounds, but had a par- guage known as “double talk,” a way of ref- ticular appeal to some LGBTQ women, erencing their identity without completely like WAC veteran Pat Bond. Desperate for exposing themselves to a potential foe. At a new life far from home, she writes about Fort Hayes in Columbus, Ohio, Officer Julie her decision to enlist: “I was twenty and I Farrell used this double talk to a superior was a lesbian and I was alone… [Going to by asking if she had ever “spent time in San the WAC] would mean I could love some- Francisco.”11 By remaining covert, LGBTQ one, I could have a special person for me. It women could bond with other members of would be all right.”5 their community while hedging against pos- For others, the WAC offered an oppor- sible backlash from the authorities. tunity to come to grips with feelings that had been only an abstract concept. When Call to Open Arms: Initial Military Charlotte Coleman entered the army base Response to Queer Women and found herself propositioned by an older This community probably would not have female officer, she “had never heard of the flourished had the United States military word ‘gay’ before,” much less identified her not shown such initial ambivalence towards own feelings.6 Nonconformity had always homosexuals in the WAC. The displeasure explained her preference for masculine of the WAC authorities towards gay women fashion and hobbies. was more akin to “Don’t Ask, Don’t Tell”—a What many queer women today would contrast to the inquisition that it would recognize as common lesbian cultural later become.12 WAC’s earlier, ambivalent tropes were just taking root in the WAC. outlook on queer sexuality is illustrated in “Butch” gender presentation—clothing a pamphlet on sex hygiene released by the and fashion choices associated with tra- War Department on 27 May 1943 outlined ditional male garb—was understood and the WAC approach to homosexuality in accepted as an expression of queer sexu- the ranks.13 The pamphlet explains lesbi- ality. On the opposite side of the gender ans are “exactly as you and I” with the only presentation spectrum were “fems,” queer difference being “sexual gratification with women who presented in traditional fem- members of their own sex.”14 The pamphlet inine garb. Butch/fem couples emerged in confounds gender and sexuality, saying that society during WWII as women were more everyone “is born with a bisexual nature, welcome in public spaces, where a pass- that is, every woman possesses some traits erby might mistake a butch and her fem that are usually regarded as masculine.”15 girlfriend for a young man taking a lady out In the same pamphlet, the War Depart- on a date. Under the guise of heteronorma- ment argued that this inherent gender dual- tivity, lesbianism was introduced to public ity is responsible for making women butch. spaces like bars.7 “Butchness” was “not to be regarded as a As on the homefront, LGBTQ service- sign that [WACs] participate in homosexual women congregated at service clubs where practices.” The only way to prove an officer they could drink, bond, and seek out new was gay was through “actual proof she had romantic prospects.8 New cultural norms relations of a sexual nature involving an-

Spring 2018, Volume VII | 87 other person of their own sex.”16 With these not help but note that, if Miss Lace truly liberal rules established, queer women wanted to be with a man, she would have could court and commune with one another noticed the absence of certain equipment under old Uncle Sam’s nose, as long as they well before she up in her lady lover’s were not caught in the act. bed. Military authorities quickly removed The pamphlet also proposed a sort the cartoon.22 of rehabilitation for suspected lesbians. Similar to the Kinsey Scale developed in Reverse Course: The Beginning of the the postwar period (which describes sex- Lesbian Witch Hunts, post-1943 uality as on a scale), the War Department In 1943, the Women’s Auxiliary Army Corps defined three types of lesbians. First were transitioned into the Women’s Army Corps the women who practiced homosexuality at (collectively referred to as WAC). Around home and entered the WAC aware of their the same time, the WAC launched a femi- identity. These openly queer women could nization campaign. A public opinion poll be easily filtered out by the simple health taken in 1943 revealed most respondents questionnaire presented to all military re- considered WAC uniforms to be the most cruits. Second and third were the straight “unfeminine” and “unattractive” of all-fe- women participating in homosexuality for male military units.23 WAC Director Oveta two reasons—missing men back home or Culp Hobby reached out to various fashion boredom.17 The War Department suggested designers to redesign the WAC uniforms combating homosexuality in these last two in an effort to revamp the Corps’ mannish categories of women by increasing interac- image.24 The new uniforms ranged from tions with male officers, increasing work- mandatory combat skirts, to colorful bat- loads to detract from boredom, and limiting tle accessories, to off-duty dresses.25 Toby private places. Newman, a straight WAC officer, recalls If an officer was under suspicion of ho- that this stylistic transition extended to mosexuality, authorities suggested that it undergarments: was actually admiration rather than lust.18 Our underwear and bras were khaki, Queer WAC Officers were encouraged to by the time they switched it from replace their romantic feelings with “hero the Auxiliary to the regular Women’s worship,” which meant admiring women Army Corps they let us wear our own in a platonic manner for their accomplish- underwear. The military was learning ments.19 Presiding officers could then help to deal with us women.26 make sure homosexual tendencies “could be guided into normal fields of expres- Then as now, a strong preference of sion, making her a valued member of the butch gender presentation was opting for WAC.”20 short hair. Across the WAC, women were Available sources indicate that male encouraged to grow out their “mannish” recruits were aware of LGBTQ women in bobbed hair and coif their locks into Eliz- the WAC. A cartoon series by Milton Can- abeth Arden-endorsed styles.27 The disap- iff, “Male Call,” was published in an Army proval of mannish haircuts even found its newsletter in 1944. One still, titled “Know way into WAC Newsletters via comedy. A Which Arm You’re In,” depicted the popu- cartoon circulated in 1943 depicted short lar character Miss Lace, waking up in shock haircuts in a manner that seems to mock to the sound of a female voice coming from those who preferred that fashion.28 the person lying next to her in bed.21 Miss Across the WAC, a new notion was start- Lace quickly blames the masculine WAC ing to take hold—controlling gender pre- uniform for misleading her into thinking sentation controls queerness. last night’s lover was a man. One can- Yet even a feminization campaign could

88 | LGBTQ Policy Journal Spring 2018, Volume VII | 89 not eliminate the elephant in the bedroom. The WAC still required that accusations of “I Have Seen War, I Hate War”: The homosexuality needed to be proven with Lesbian Purge Begins evidence. It encouraged authorities to be As the war neared an end, the WAC was “generous in outlook” when handling such under pressure to downsize their organi- allegations.29 All accused women were zation.35 A convenient means of shrinking presumed to be innocent until “definitely the force was purging lesbians, a process proven otherwise.”30 Gossip and hearsay that began in earnest in 1944.36 Psychiatrist was not considered sufficient, in an attempt Albert Preston introduced to the WAC the to dissuade servicewomen from making al- idea that queerness was a mental illness legations rooted in suspicion.31 among women in the service (a standard However, those caught in the act were that had been used against homosexual in immediate danger of losing their jobs. A men since the onset of the war).37 The most firsthand account by a heterosexual WAC overtly anti-LGBTQ aspect of WAC policy veteran, Ellenor Rennell, describes what lay in its Recruiting Stations’ neuropsychi- happened when she walked in on a fellow atric examination. This involved a set of WAC in bed with a woman who worked on questions designed to identify queerness in the hangar cantina: candidates, exposing any desire “to indulge Someone was shaking me “wake up!” her sexual perversity.”38 In lieu of self-dis- It was a military police [sic] “I want closure, recruiters received explicit instruc- to see you down in the room”… He tions to screen women based on gender said “what’s the deal with those two presentations. These qualities were listed women?” so I told him. Then he said off in a WAC newsletter for servicewomen “you’ve got to be kidding” and I said to peruse. Traits such as low voices, stocky no. He said “You will see Colonel and shapeless physiques, and “rough or Johnson o’eight hundred tomorrow, coarse manners” were indicators of butch- you know the commanding officer… ness and, therefore, of homosexuality.39 He says I understand there were two Though there are no official records of girls sleeping together in the bunk… the number of queer women in the WAC, it He said “Did you ever hear of queer appears that Army officials underestimated people?” I said well, to me queer is the size of WAC’s queer population. Officer someone who has to go to the state Johnnie Phelps, who claimed 97 percent of hospital or has a problem. So then her battalion was queer, recounts conveying he had to tell me about girls and the to her commanding general, Dwight D. Ei- men…So the girls were discharged, senhower, how large an impact purging the honorable discharge…32 WAC of lesbians would have: One day I got called into the com- Prosecution was difficult due to the manding general’s office, and it hap- court’s narrow definition of sex. Fondling, pened to be Eisenhower at the time. kissing, and hugging failed to qualify as in- “It’s come to my attention that there tercourse under military law.33 WAC veteran may be some lesbians in the W.A.C Pat Bond alludes to the subtleties of sex be- battalion. I’m giving you the order to tween women in her semi-autobiographical ferret those lesbians out and we’re play, “Murder in the WAC,” when her naive going to get rid of them.” And then younger self asks for sexual guidance from I looked at him, and I looked at his an older friend, who crudely clarifies: “You secretary, who was standing next to gotta make love to ‘em with your tongue!”;34 me, and I said “Well sir, if the General this was a concept no military court in the pleases. I’ll be happy to do this inves- 1940s was willing to entertain. tigation for you, but you have to know

90 | LGBTQ Policy Journal I’m the first name on your list will be we’ve been here sir, the general has mine [sic]. And he was kind of taken awarded us a commendation for mer- aback a bit. And then this woman itorious service.” And he said “Forget standing next to me says “Sir, if the the order.” It was a good battalion to general pleases, you must be aware be in.40 that Sgt. Phelps may be second, but mine will be first.” And then I looked While there is no official record of this at him, and I said “Sir, you are right exchange, Phelps’s testimony highlights there are lesbians in the WAC bat- just how difficult a lesbian purge would be talion. And if the general is willing to implement. The military presented an to replace all the file clerks, all the ideal environment for queer women, and in section commanders, all the drivers, order to pluck out queer women from the every woman in the WAC detachment service, officials needed to set down criteria (there were about 980 something of by which potentially queer servicewomen us) then I’ll be happy to make that could be identified. list. But I think the general should be In a departure from the 1943 Sexual Hy- aware that among those women are giene pamphlet guidelines, butch gender the most highly decorated women in presentation became the main qualification this war. There have been no cases of for discharge. The tactic served a practical illegal pregnancies. There have been purpose. By using the visibility of butch no cases of AWOL. There have been women as the primary criterion for being no cases of misconduct. And as a gay, authorities could easily identify those matter of fact, every six months since they regarded as lesbians. At the same time,

Spring 2018, Volume VII | 91 it masked the scope of the community by ex- the Tokyo base: dishonorable discharge for cluding the fem population. Fems who could homosexuality.45 Instead, Bond received an pass as straight and did not have to fear per- honorable discharge on 3 July 1947 at Camp secution. Butches lived with the fear of dis- Stoneman, California.46 honorable discharge. More insidious was the Postwar, Bond launched a theatre career depiction of butch women as sexual preda- as both an actress and playwright. Her play tors, and fems as innocent prey.41 Murder in the Women’s Army Corps reflects her Casting butch women cast as villains was time as a WAC officer in Tokyo. She recreates ironic, because there was a bigger predator the anxiety surrounding the purges in a scene on the loose: male recruits.42 Milton Caniff’s where queer characters lament their predic- famous cartoon depicts a WAC fighting off ament; if the character they suspect of being drunk and sober recruits, ending with her a spy disappears soon, the military will “send saying “Say—is there some sort of campaign in another one.”47 Bond’s writing reflects the ribbon for a gal who has fought against the hurt resulting both from the condemnation U.S. Army?” of a country who benefitted from her service Formal trials for female homosexual- and from betrayal by those she once called ity did occur. These trials were rare, in part family. The WAC could not purge itself of because of the WAC’s tendency to deal with queer women without the knowledge of these cases unofficially and under the guise of queer women themselves, who were trusted general misconduct. The only known federal enough to be privy to such information. What investigation of female homosexuality origi- was once a safe haven for the LGBTQ com- nated when a mother discovered her daugh- munity became the opposite, where every ter’s love letters from a female WAC cadet. woman was for herself and falling in love The mother went straight to the court-mar- could be your ticket back home. tial43 and lamented about the affair in a letter Of the few unlucky women who ended up dated 12 May 1944: in court, most lost their cases. The military It is no wonder women are afraid to forced queer women to return home with enlist. It is full of homosexuals and sex nothing but happy memories of the service maniacs… and [her daughter’s older and a dishonorable discharge to color their WAC lover] has ruined other girls and reputations for the rest of their lives. will continue to spell other girls who Years after atomic bombs were dropped joined the WAC.44 on Japan and the Paris Peace Treaties were signed, the military reevaluated its approach “Is This Tomorrow?”: The Witch Hunt to the homosexuals in their midst. In 1949, Continues the Military Personnel Board commenced a V-Day, the day the Nazis surrendered un- review of homosexuals in the military and conditionally to the Allied powers, did not established a standard protocol dealing stem the momentum of the WAC’s lesbian with their presence, better known as Project witch hunt. For Officer Pat Bond, newly sta- M-46.48 The protocol almost entirely focuses tioned in postwar occupied Japan, the crack- on male homosexuality, even proposing pro- down on homosexuality was a continuing viding servicemen with alternative sexual and imminent threat. Between the end of outlets similar to “comfort women.”49 De- the war and her deployment to Japan, she spite the prevalence of queerness in the WAC, married Paul Bond, a gay male friend, as mu- M-46 hardly mentions lesbianism.50 The only tual proof of heterosexuality. On her Tokyo reference to the Women’s Army Corp is the base in 1947, the witch hunt raged; lesbians requirement that in “cases involving female testified against each other in hopes of sav- personnel, a female officer should be a mem- ing their jobs and honor. Her faux marriage ber of all [disciplinary and investigative] saved Bond from the fate of 500 women on boards.”51 Other than a typo calling homosex-

92 | LGBTQ Policy Journal uals “homesexuals” (a mistake future gen- erations of queer women may laugh at for End Notes its cultural accuracy) the extensive legacy 1 Landon Marchant, “Why so Many Transgender of queer WACs is ignored. Americans Find Refuge in Military Service,” Washington Post, 27 July 2017, accessed 20 December The military’s attitude to queerness had 2017, https://www.washingtonpost.com/news/ 52 hardened by October 1949, when a memo- post-nation/wp/2017/07/27/i-am-a-transgender- randum was issued to the Secretaries of the veteran-the-military-gave-me-refuge-after-i-fled- Army, Navy, and Air Force: my-conservative-hometown/. 2 Homosexual personnel, irrespec- Elizabeth Lapovsky Kennedy and Madeline D. Davis, Boots of Leather, Slippers of Gold: The History tive of sex, should not be permitted of a Lesbian Community (New York, NY: Routledge, to serve in any branch of the Armed 2014), 38. Forces in any capacity, and prompt 3 The insightful autobiographical play written by separation of known homosexuals Pat Bond, Murder in the WAC, was not written until from the Armed Forces is mandatory.53 well into the 1970s, and Johnnie Phelps’s infamous interaction with General Eisenhower was not recorded until 1984. The procedural grey area which once fos- 4 Kennedy and Davis, Boots of Leather, Slippers of tered a rich LGBTQ subculture for women Gold, p. 31. 5 was gone. “Women in Uniform,” 1979, Box 1, Pat Bond Papers, LGBTQ Archives, San Francisco Public Library, San Francisco. 25 March 2017. Conclusion 6 Charlotte Coleman, “Rosie the Rebel,” interview by The end of World War II brought an ea- Steve Estes in Ask and Tell: Gay and Lesbian Veterans gerly anticipated homecoming for soldiers Speak Out ( Chapel Hill: UNC Press, 2007), 25. 7 abroad, but for the thousands of LGBTQ Kennedy and Davis, Boots of Leather, Slippers of Gold, 374. women who found freedom in the mili- 8 Pat Bond interview, Word is Out, directed by Peter tary, it was the beginning of a new era of Adair and Nancy Adair, New Yorker Films, 1979. queerness for years to come. The founda- 9 Report on the Conditions in the 3d WAC Training tion of our modern-day queer community Center, Fort Oglethorpe, Ga., 29 July 1944, File: took shape as a result of the social changes, 333.9, 3d WAC Training Center, RG 159, NARA. 6 December 2017. gender empowerment, and new sense of 10 Report on the Conditions in the 3d WAC Training individuality brought on by World War II. Center, 27. Much like their WAC predecessors, 150,000 11 Report of Proceedings in the case of Techn. 4th trans servicepeople and veterans of the US Grade Helen L. Parquet, Security Classified General armed forces today have to contend with Correspondence, 1942-1946. Box 19, RG 165, Folder P. Entry 54, NARA. 30 November 2017. domestic American politics just as much as 12 Introduced by President Bill Clinton, “Don’t Ask, the geopolitics of their place of station.54 It Don’t Tell” was the 1990s and 2000s military policy would be a tragedy for their community to towards LGBTQ Servicemen and women, where as be taken from them as it was taken from the long as sexuality was neither revealed nor discussed, it would not yield a dishonorable discharge. queer WACs. 13 War Department Sex Hygiene Course - Pamphlet 35-1, 27 May 1943, Box 4, Pat Bond Papers, LGBTQ Archives, San Francisco Public Library, San Francisco. 25 March 2017. 14 War Department Sex Hygiene Course - Pamphlet 35-1, 25. 15 War Department Sex Hygiene Course - Pamphlet 35-1, 25. 16 War Department Sex Hygiene Course - Pamphlet 35-1, 25-26. 17 War Department Sex Hygiene Course - Pamphlet 35-1, 26. 18 War Department Sex Hygiene Course - Pamphlet 35-1, 27.

Spring 2018, Volume VII | 93 19 War Department Sex Hygiene Course - Pamphlet 44 Report on the Conditions in the 3d WAC Training 35-1, 27. Center, 1. 20 War Department Sex Hygiene Course - Pamphlet 44 Guide to the Pat Bond Papers, 1910-1994, Online 35-1, 27. Archive of California, California Digital Library, 21 Milton Caniff, “Male Call: Know Which Arms accessed 28 April 2017, http://www.oac.cdlib.org/ You’re In,” Ohio State University Libraries, n.p., findaid/ark:/13030/tf0779n3vq/entire_text. n.d., Web, https://library.osu.edu/dc/concern/ 46 Pat Bond Army Documents, 1947, Box 3, Pat Bond generic_works/g732wc63k. Papers, LGBTQ Archives, San Francisco Public 22 Leisa D. Meyer, “The Lesbian Threat” in Creating Library, San Francisco. 25 March 2017. GI Jane: Sexuality and Power in the Women’s Army 47 Murder in the WAC, 2 November 1981, Box 1, Pat Corps during World War II, (New York: Columbia Bond Papers, LGBTQ Archives, San Francisco Public University Press, 1996), 154. Library, San Francisco. 25 March 2017. 23 Meyer, Creating GI Jane, 153. 48 Allan Berube, John D’Emilio, and Estelle B. 24 “Office of the Director of the WAC,” Security Freedman, under Fire: The History of Classified General Correspondence, 1942-1946. Box Gay Men and Women in World War II (Chapel Hill: 17, Folder 95. RG 165, Entry 54, NARA. 30 November University of North Carolina, 2010), 261. 2017. 49 “Subcommittee on the Discharge of Homosexuals 25 Meyer, Creating GI Jane, 154. from the Armed Services,” 1949, Subcommittee 26 Toby Newman (AFC2001/001/100500), video Studies 1940-1951, Record Group 330, Entry Number recording (MV), Veterans History Project NM-12 124, NARA. 6 December 2017. Collection, American Folklife Center, Library of 50 “The Homosexual Problem,” memorandum from Congress, Washington, DC. Colonel Mary Hallaren to Major General G.E. Byer, 27 Steve Estes in Ask and Tell: Gay and Lesbian 1950, box 86, Background Papers, Women’s Army Veterans Speak Out ( Chapel Hill: UNC Press, 2007), Corps 1945-1976, Records of the Army Chief of Staff, 154. RG 319, NARA. 6 December 2017. 28 The exact date for this cartoon is difficult to 51 “A Study to Revise Regulations for the Handling of determine because the archive box I found it in had Homosexuals in the Military,” 1949, Subcommittee fragments of whole newsletters. All the newsletters Studies 1940-1951, Record Group 330, Entry Number date 1943 and 1944, so my best estimate would be NM-12 124, NARA. 6 December 2017. 1943. History and Background of the WAC, RG 165, 52 Lillian Faderman, The Gay Revolution: The Story of Entry NM-84 55, Box 212, NARA. 6 December 2017. the Struggle (New York: Simon & Schuster, 2015), 32. 29 War Department Pamphlet 35-1, 25. Box 145, Series 53 Memorandum: Department of Defense to 54, RG 165, NARA. 30 November 2017. Secretaries of the Army, Navy, and Air Force, 11 30 War Department Pamphlet 35-1, 25. October 1949, in “Report of the Board Appointed 31 War Department Pamphlet 35-1, 7. to Prepare and Submit Recommendations to 32 Ellenor Rennell (AFC 2001/001/100819), video the Secretary of the Navy for the Revision of recording (MVD2 REF), Veterans History Project Policies, Procedures, and Directives Dealing with Collection, American Folklife Center, Library of Homosexuals,” 15 March 1957. Congress, Washington, DC. 54 Gary J. Gates and Jody L. Herman, “Transgender 33 Report on the Conditions in the 3d WAC Training Military Service in the United States,” Center, 32. Williams Institute, UCLA School of Law, 2014, 34 “Women in Uniform,” 7. williamsinstitute.law.ucla.edu/wp-content/uploads/ 35 Estes, Ask and Tell, 7. Transgender-Military-Service-May-2014.pdf. 36 Estes, Ask and Tell, 7. 37 Major Albert Preston, “History of Psychiatry in the WAC” (Spring 1946): 4. Box 143, File: 700, Series 54, RG 165, NARA. 6 December 2017. 38 Meyer, Creating GI Jane, 158. 39 “WAAC News,” WAAC Newsletter 1, no. 33 (5-12 June 1943): 3, Fort Des Moines, Iowa, Box 212, Series 55, RG 165, NARA. 30 November 2017. 40 Johnnie Phelps interview, in Before Stonewall: The Making of a Gay and Lesbian Community, directed by Greta Schiller and Robert Rosenburg (1984; New York: First Run Features). 41 Meyer, Creating GI Jane, 152. 42 “WAAC News,” NARA. 43 Report on the Conditions in the 3d WAC Training Center, NARA.

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