Time for a gender scrub

UPDATE: Noted attorney (and Bernie Sanders superdelegate) Rich Cassidy informs us that part of this is already underway: he’s a member of the Uniform Law Commission, which has begun work on rewriting Vermont law for a post-Obergefell world. Good to know. I do want to see government policies and forms become more gender-inclusive as well, but the law is the most important thing. Kudos to the ULC and those who serve on it.

A few years back, the Vermont Legislature initiated the Respectful Language Study, a long-overdue effort to scrub Vermont’s laws and public policies of archaic references to people with disabilities. Strange to think that, until very recently, our laws contained references to retardation, idiocy, imbecility, lunacy, mongoloids, defectives, invalids, etc. Yeah, that stuff was in there.

It was an intensive, multi-year effort. But when it was completed, our governmental documents were stripped of degrading and misleading terminology.

Well, today is Trans Visibility Day in America. It’s a day when trans people show themselves as they are — friends, neighbors, loved ones, valued members of their communities, not at all scary or threatening. I think it’s an appropriate occasion to call for a new Respectful Language Study.

This time, the focus would be on gender-related language unsuited to a time when the binary model of gender no longer applies. Terminology that assumes all people are either male or female, when married couples consist of one man and one woman. This kind of language can be insulting at the very least; at worst, it can interfere with people’s rights and needlessly complicate government processes.

Also, the Legislature took action this year to “ban the box” — to eliminate questions on state job applications that require disclosure of criminal records. (Background checks can still be performed, but only after an applicant gets the chance to be considered.)

CheckBoxesWell, now we need to “ban the boxes” — those nearly universal check-boxes labeled “M” and “F”. Most of us check these boxes without a thought; but for gender-nonconfurming people, each pair of boxes is an existential question with no clear answer.

There’s no reason for most of these boxes. In many cases, they could be eliminated completely. In cases where there is a clear need to know, we should add a third box with space for the individual to self-identify.

Let’s take a very prominent example: driver’s licenses. Is there any purpose in identifying gender on licenses? It’s not to help confirm the identity of the driver; the photo is the only thing commonly used for that. (Really, does anyone check height, weight, eye color, or gender? “Sorry, sir, there’s no way you’re 180 pounds.” No. the only real reference point is that ugly washed-out photo.)

Admittedly, gender-neutral driver’s licenses may run afoul of new federal standards. In which case, ball’s in your court, Senators Leahy and Sanders and Congressman Welch. But even if we can’t change the licenses, the example should teach us a lesson: there’s a lot less need to pin down gender identity than you’d think. It’s irrelevant in most cases, or it can be made irrelevant without compromising real government interests.

And here’s a thing. On a recent trip to Michigan, I came across a story about the continuing legal complications of marriage equality: the fact that, in most states, family law hasn’t caught up.

This may be less of a problem in Vermont than in states where marriage equality was imposed by the Supreme Court’s ruling in Obergefell v. Hodges. But here’s the situation in Michigan, as outlined by divorce lawyer Angie Martell.

Before Obergefell, Michigan not only banned gay marriage, it didn’t recognize same-sex marriages performed in other states–so such couples couldn’t get divorced here, either. In theory they could return to the states where they wed, but most states require couples to live there for at least six months before they file for divorce.

While the court’s ruling solved that problem, LGBT divorce is still riddled with complications. In one recent case Martell consulted on, a couple who married in San Francisco in 2004 and then had their marriage voided by the Supreme Court of California the same year were pleased to learn that their still-strong marriage would again be recognized under Obergefell. But in some cases Obergefell, to use Martell’s term, can “resurrect” marriages that neither partner wants any more.

Martell notes that a hypothetical individual who got married in San Francisco, separated from their partner after the court voided the marriage, and has since remarried someone else would now be a bigamist in the eyes of the law.

… Washtenaw County Trial Court judge Patrick Conlin says he hasn’t seen “a huge onslaught” of gay divorce cases. But he notes that same-sex custody cases have become particularly “heartbreaking” post-Obergefell, as a biological parent in a separating same-sex partnership may under state law easily win sole custody of children of the partnership. “It highlights in my mind how tentative the status of non-married individuals has been for years,” Conlin says.

I don’t know how Vermont’s family law addresses these issues. But given the glacial pace of legal reform, I’ll bet that some of this applies in Vermont. It’s just one more problem for my hypothetical task force to explore.

So, how about it, lawmakers? Also, how about it, Vermont Law School? Got a bunch of students who could take this on as a special project? If we want to fully protect everyone’s rights, if we want to be fully inclusive, we’ll need to do a gender scrub.


10 thoughts on “Time for a gender scrub

  1. Edward Garcia

    1 V.S.A. § 120. Insane person
    § 120. Insane person
    “Insane person” shall include every idiot, non compos, lunatic and distracted person.

  2. Richard Cassidy

    You have probably never heard of the Uniform Law Commission, but we are working on it.
    B. Coordinating Committee on Technical Amendments Necessary to Comply with
    Obergefell v. Hodges
    At the ULC’s July 2015 Annual Meeting, the Committee on Scope and Program recommended to the Executive Committee, and the Executive Committee approved, that a coordinating committee be formed to amend any relevant provisions of ULC Acts to comply with the U.S. Supreme Court decision Obergefell v. Hodges relating to same sex marriage. The committee will identify and report on any policy issues for further consideration by the Executive Committee. The membership of the Committee includes members of the relevant Joint Editorial Boards.

  3. Kay Trudell

    I am reminded of the novels “Animal Farm” and “Brave New World” and “1984” and “Anthem” and “Atlas Shrugged”. I read all of them in high school, and they warned me about thought controllers and language controllers and government controllers. I can see eliminating pejorative terms, but don’t wander into the world of idiocy and imbecility by not knowing where sanity crosses over into insanity. Choose Male? Female? NEITHER??? That’s insanity. You are born one or the other. No matter how you dress, or what you do to alter your outward appearance, your DNA will always be one or the other. Speech codes and law are becoming like a ship with no rudder, being blown here and there until all is fluid and nothing retains an objective foundation. Feelings and self-entitlement and political correctness have replaced reality. Does a person have the “right” to feel this way about him/herself, or alter their outward appearance or say they are one thing when they clearly are not, or refer to any arrangement in any combo as a marriage, or even go back and forth between genders depending on how they FEEL about it? The law (being politically correct) will insist that they do and that the rest of us must conform. Thus is tyranny created and people who will not conform must be forced to conform. “The binary model of gender no longer applies”?? In whose politically correct but insane worldview is that an objective truth?? In your world of no boundaries or limits, objective truth must be one of the first things to go. And in your PC efforts to elevate and protect gender non-conformity, are you not demanding that everyone else must conform to that worldview?

      1. Kay Trudell

        There is a vast difference between getting rid of terms that are truly pejorative and using that as an umbrella to try to alter objective reality. Anger is not the term I would use to refer to part of what you are advocating. Orwellian is the term I would use.

  4. Kay Trudell

    Do you believe that objective reality is whatever a human says it is? Can objective reality change from one minute to the next? Is there such a thing as objective truth? Is human law answerable to any higher law or The Law of Nature and Nature’s God?

      1. Kay Trudell

        You did not answer any of the questions I asked. I asked what YOU believe about law and objective reality and objective truth. “The Laws of Nature and Nature’s God” is part of the Declaration of Independence, not a prelim to a boxing match.

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