|(C) ICTLEP, Inc., August
from the PROCEEDINGS
International Conference on
For today's presentations, for the record, for the transcripts and the audio proceedings, I am Phyllis Randolph Frye, Attorney, Houston, Texas, and a member of the Lesbian, Gay and Transgender Community. As you know, each of the nine committees that we've had going on meeting for the past two days will be making a 40 minute presentation. As to the current status of the law in their area of their committee assignment as regards to the Transgender Community. And then after they present that current status, they're going to present strategies for progressive change. They're often going to suggest ideas for legislative and regulatory change.
This is the hub of our conference: Strategies for progressive change with suggestions for legislative and regulatory change. Because we have to shape our future as the transgender community. Because quite frankly, as we've discovered in committee, the current status of the law pretty much either stinks or is ignorant of who we are and operating on myth and stereotype or is silent.
We need strategies. That's another reason why we've had so many lay people involved. Sure we've had lawyers involved. We also have lay people involved because many lay people in our community are activists. And as long as I and several of the people who are managing this thing now and in the near future, we're laying plans for the next conference, are involved in this we are going to ensure this is not just for lawyers but this is for lay people also, even though we are talking about the law.
And this is not just for the transgender community. We feel great alliance to and feeling of shared repression with our lesbian sisters and our gay brothers. A lot of that is because the people that persecute them or people that persecute us are the same people. Before I begin with the first speaker, I want to tell you a little story about the National Association for Women Business Owners and about my association with them. Throughout this conference, I've been telling you little stories. The reason why is because I want to make you feel comfortable with your being a transgendered person. I also want to make you feel uncomfortable if you have been relatively inactive in establishing yourself as who you are. I want you to know that the world out there is yours, and I want you to know that if you have the nerve to take a piece of it, you can have it. So, I will continue to present little stories.
"Monday, 3:00 p.m., 21 November 1977; 1708 Sunset Boulevard at Ouisie's Table." That was on my calendar. I'd been Phyllis at that time for only 14 months, a week, and a day. And I'd been unemployed for 17 months. I was sitting at a Cafe called Ouisie's[page 68] Table enjoying this soft drink with other women that I'd met during my journey to get to Houston crossdressing ordinance repealed. I had found a home with many of the feminists in Houston, and for the most part I had been accepted.
A year prior to this, I'd met the women's advocate for the office of the Mayor. Our Mayor then was Fred Hofheinz. Her name was Ms. Nicki Van Hightower. We chatted about the Women's Movement in general, about me, and the ordinance specifically. Nicki has been a definite leader of the Women's Rights Movement in this region, and we have been allies often even since then. In January 1977 a new Mayor came on board and he and City Council effectively sacked Nicki and her office. Those macho rascals had hated her for a long time because she had dared to speak the truth about unequal pay for equal work and about the many restrictions placed on women seeking to advance professionally within the city bureaucracy. As a result of her being sacked the feminists in Houston mobilized. We packed City Council Chambers to protest and we protested for several days thereafter.
Yes, I was acceptable to these women because I was a soldier in the struggle. This was the Houston grassroots of what many women take for granted today. And even though they take advantage of the gains, they shrink from the label "feminist" because they didn't fight the fight. Shortly thereafter I got active working as a volunteer in the City Council Race for Marilyn Whited, who made a serious bid but alas she lost. There were very few women elected to anything back then. These were the forerunner days to Kathy Whitmire being elected Controller and later on she was elected Mayor. As a result of my involvement, I was accepted. When the mailout was issued for the organizational meeting of the Houston Chapter of the National Association of Women Business Owners, acronym NAWBO, I received one of the invitations. There I was in Ouisie's Table, hoping to use my Engineering degree somehow and earn some money somehow. I was still into the struggle to receive unemployment compensation because of a homophobic state agency. Can you imagine being unemployed for as long as I was, what a big proportionate cost it was for me to come up with a hundred fifteen dollars on that day for my charter membership? It was significant.
Several of us at that meeting joined and decided to form the nucleus and form the Board and elected officers. For the next several months I went to many meetings, trying to help to get this group established in Houston.[page 69]
In January the first President, I don't remember her last name, but her first name is Jeannie, called my spouse and me because she had only been in Houston for about 10 months and she had just been raped and she was scared. We spent much time helping her initially through the ordeal and fear. I really felt like I was contributing. I really felt like I was making a contribution and I was a worthy individual; that I had talents that were accepted and acceptable. And that has a lot to do with building the ego whenever we are going through a transition, especially if we're unemployed.
Just before the February Board meeting that year, I was asked to resign. I was asked to resign by a very rude and homophobic person named Martha and I know her last name and I see her at events and around the city. She's an Attorney in Houston. She continues to be very rude and very homophobic. The rest of the Board sat silent as Martha chased me out because of my being transgendered. She had convinced the others that no one else would join the group. So I left.
You know I cried a lot in those years. I went through a lot of rejection from other local groups during that time. I went to the Houston A & M Club trying to establish myself as just another human being who needed work and was unemployed. I attended many meetings of the American Society of Civil Engineers and others. It was pure hell. I became very bitter during these years. So bitter that I can only go back in my memory of those times, for short periods of time and at a very shallow depth, or else the intensity reinvades my ego. Even as I stand here now and start to read to you some of these events, I can feel the bitterness well up inside. Obviously as all of you know, things are great now. Things are great now! I practice law successfully. I am very much out of the closet. My spouse and I have already celebrated our 19th year together and all is very well for us. You also know from an early presentation this week that my son, my 22-year old son, and I are getting along famously.
In July of 1991, a year ago this summer, I met a NAWBO person. We chatted and she asked me to join. I told her the story that I've just told you. She was appalled. She apologized right there on the spot, and she said that should never have happened. Obviously, she wasn't involved in it then. Obviously, also she talked to some people in the group because a week later I received a membership application from the local chapter. I wrote a letter to the membership Chair and I told her again the same story I am telling you now. I told her that if I was going to come in that[page 70] she better present this to the Board, cause I didn't want to go through what I'd just gone through. The day after the subsequent Board meeting, my answering machine had a message and it said come to the next general meeting.
I've since rejoined with the NAWBO. I'm out of the closet there. I am well accepted. Dee McKeller has been to a meeting. Cynthia Davis has been to a meeting. Two NAWBO people who started their own businesses out of their garages are going to attend the September meeting of the Gulf Coast Transgender Community. As part of our meeting that night we will be trying to encourage people not to fear loss of job because of the alternative of starting their own business. The regional director of the small business administration as well as these two NAWBO members are going to make a presentation that night. They have listed me in their membership directory as being a charter member. When I went to one of their meetings I took the brochures for this conference. They expressed great interest, and they wished me great amount of luck.
Transition in 1992 is difficult. I
am not going to tell you that it is not difficult, but I assure you the
transition in 1992 is much easier than it was in 1976. I started in 1976
and I made it. You need to start today 'cause you will make it, the
times are better. This is our decade. Make it our decade. There are very
many good-hearted people. They were back there then and there are even
more now. Educate them, take the risk, and reach out.
"REPEAL OF THE HOUSTON CROSSDRESSING ORDINANCE"
All of those who have been here since Wednesday night participating in all the activities, please stand. All right. We've learned a lot, and there's been a lot of empowerment going on. For those of you, for one reason or another, either you were out of town or you had to do your j-o-b during the day or whatever, I want to do a quick recap on what happened Wednesday night. Those who were able to arrive early went with us to the Courthouse Club in downtown Houston, Texas, and we had a nice couple of cocktails and a light buffet. We were one block from one of the largest courthouse complexes in the United States. On Thursday morning, we started our committees, and we had six committees in the morning that each met for an hour-and-a-half. And we had three committees that met in the afternoon. Some of them went for three whole hours. The same process repeated for Friday. Thursday afternoon, we had Judge Eric Andel, the 358th Family Court, speak. Thursday night, we went to the Courthouse Club and had a terrific sit-down dinner. We were very well hosted at the Courthouse Club, and I had a lot of fun when I went in because I saw some people that I practiced law with that are peers of mine. When they saw me come in they waved, and I waved. And several people said, "is your law conference going on right now?" And I said, "Yeah." And they said, "good, go for it." And that was a lot of fun.
Friday, our speaker was Judge Alice Oliver-Parrot, who's the Chief Justice of the First Court of Appeals, in Texas. Last night our speakers were Raymond Wayne Hill as in the Supreme Court case City of Houston vs. Hill, and the Supreme Court called him a "citizen provocateur". We also had the wonderful entertainment of Wendy Parker, and that was followed by the entertainment of Phyllis and Colleen Heard, and her gig jammed until about 11:30 last night. This morning we went about our business and started our committees, and we had 45-minute committee reports on the current status of the law and on the need for and strategies for progressive change. We started off with Military Law. On Health Law, my own personal feeling on doctors who make people divorce before they'll allow surgery, I hope somebody sues the fool out of those doctors, but that's just Phyllis Frye ranting and raving.
Before I introduce tonight's two speakers, I want to tell you the story, the full story about how the ordinance was repealed. It was interesting. The City of Houston used to have an ordinance No. 28-42.4 that prohibited people from wearing clothes of the opposite sex. Ray Hill told us about it last night. It was not only used against our community, but it was used against anybody that the cops in the vice squad didn't like, and quite often it was used whenever the cops would raid a lesbian bar. They would arrest women wearing fly front or zipper front pants. Figure that out. It was used.
On August the 12th, 1992, twelve full years had passed since the Houston City Council's repeal of that section of the code of ordinances. So twelve years and about two weeks have passed now since that ordinance was repealed. And it's always been funny to me because even today, when I look in the paper, I see advertisements for fashion and I see women dressed in what is called "men's wear". It's very tailored suits and ties and wingtip shoes or whatever.
This ordinance had its roots and a combination of other ordinances that went all the way back to the year 1904. I remember researching its roots and I remember the conversations I had with the Assistant City Attorney, his name is Ed Casarez. Ed is a very fine person and has always treated me with great courtesy. This ordinance was the one that was used to arrest and to hound Anthony (Tony) Mayes who later became Ann Mayes. At that time, Herman Short was the Chief of Police. This ordinance was also attacked by several Jane Does in the Federal Court. This was the McCollen V. Doe case you also heard about this afternoon. I've learned that the ordinance was also allowed to let the police go into male bars and arrest female impersonators.
As you know, in September of 1976 I began my full time changeover and was subject to enforcement of the ordinance. Shortly afterwards and terrified of arrest, I wrote to every single member of the then Houston City Council: Mayor Fred Hofheinz was presiding. I got one positive response within a week after I'd sent those letters. I was called on the phone by council member Johnny Goyen. We've been friends since that day and I wept openly at his funeral several months ago. But Johnny called, and he told me that he'd always been puzzled by the way Ann Mayes had been treated. He didn't understand who she was but he was really upset by the way she had been mistreated. And when he read my letter and he reviewed my education and a short list of life experiences, he called me.
We met in his office and within a few weeks he had me meet and introduced me to council members Judson Robinson and Jim Westmoreland. Judson is now deceased. Jim Westmoreland was pretty much run-off from city council in an election. At that time Jim thought I was a joke, and he tried to persuade me not to have any ties with the lesbian and gay community. That was late 1976.
For the next several years, I went downtown several days each week. I wrote a myriad of letters and made numerous phone calls. I lobbied to municipal judges, to council members, anyone who would listen. I became active in the feminist movement. I joined the League of Women Voters, and I still believe to this day that the League of Women Voters president at that time, her name is Lynn Johnson, was influential enough to convince many people to the fact that I was serious about who I was and I deserved their attention.
I lectured all over Houston for a Drs. Jerome and Ruth Sherman, and for JoAnn Small, all three at the University of[page 106] Houston Downtown, for Vicki Hammet and the late Dr. Jim McCrary at the University of Houston main campus, for Dr. Chad Gordon and Dr. Bill Martin at Rice University and other universities.
Once I even went to the police station, and had it out with the Deputy Chief over Vice, Fred Bankston, at the invitation of then Chief, Pappy Bonds. I know God was watching over me, because I actually walked out of there. I was never arrested. Each and every day however for those four years when I left the house in the morning, I never knew if I'd be back that night or instead in jail. And each and every day for four years, my spouse, Trish, left the house not knowing whether I'd be back at home or in jail. I've always felt that that was cruel and inhuman punishment, both to me and to Trish.
In 1979 we had elections for single member districts in Houston. At that time I was a law student forming the organization of law students, friends of gays. The name had an asterisk after it to imply inclusivity. That was when Ernest McGowan and I became friends. He was running for a single member district. And as we talked one day when he was making a presentation, he invited me to do volunteer work in his office after he was elected. It gave me the opportunity to lobby on the ordinance repeal while he got the benefit of running ideas and projects by me with my engineering and my law backgrounds. It was very equitable.
In the spring of 1980, council member, John Goodner, popped off about me at a city council session. What was going on was that for weeks and weeks and weeks and weeks and weeks and months and months and months, whenever I'd be upstairs in Ernest's office, at least once a week he would call up there. He had conveniently forgotten something and I would be told to bring it down to him. What he was doing is he was purposely and intentionally parading me and flaunting me right underneath their noses. And one council member, John Goodner, finally exploded.
It caused quite a stir. I do believe that council member Dale Gradinsky -- now one of our J.P.'s --suggested that I confront John Goodner directly. I did and with tears in my eyes I explained to him that this was not a game nor a stunt but a real life situation. Many other council members who had come to know me talked to him privately. He and Ernest were not even a little bit friends because of the pop off and other things. Several members worked to keep them at arms length. There was much tension in those days. That afternoon, John Goodner was talking to Council Member Lance Lalor about the fact that John may have shot himself in the foot this time. Lance said, "why don't you move to repeal, and I'll second it?" John did, and Lance did. That afternoon, Lance told me to get out of City Hall and not come back until the repeal went through. He said he'd take it and manage it through. I had to trust his skills, and I did. He called me whenever anything was relevant.[page 107]
On August the 12th, 1980, after several delay-tags that were put on to the repeal ordinance, it was again before Council. At the time, our Mayor was Jim McConn. He was out of town, as was Jim Westmoreland. McConn knew that it was coming up on the agenda, and he had told the Mayor pro tem for that day, Johnny Goyen, that it was alright with him. City Secretary, Anna Russell, waited until Council members Homer Ford and Larry McKaskell were on the phone. When they got on the phone, she immediately handed the repeal to Johnny. You see, the deal is that under council rules if you're present and you don't vote no, then it's an automatic yes vote. Homer and Larry were on the phone. They didn't even know what was going on. There was only one no vote, and that was Council member Christen Hartung, she was the sole and only no vote. I still hope that somebody will beat her. Homer and Larry went to Johnny about five minutes later, and Johnny says, "oh, I didn't know that was going through." The ordinance was repealed and it has remained so to this day.
On the 9th of August 1990, I received a certificate of appreciation from the City of Houston for meritorious service to this community. It was signed by then Mayor Kathryn J. Whitmire. And it hangs in my office.
Once again I say this to you, my
sisters and my brothers, if I can do that in the late 70's and in the
early 80's, what is your excuse? You have no reason for staying scared:
you have no reason for staying closeted. You have no reason for not
being the true person that you are. This is our decade. Make it happen
for you now.
TREATMENT OF THE ACCUSED
The Justice on the Texas Court of Criminal Appeals. For those of you who do not know, Texas has two courts of highest jurisdiction. We have a State Supreme Court for civil matters and the Court of Criminal Appeals for criminal matters. In other words, the man you are about to meet and hear from is one of the 18 highest judges in the state. I think we should be honored, and we are certainly privileged that a person of this distinction in judicial and legal knowledge has come here to visit with us. I've known Charlie for about two years. He's a good person. He's a dynamic jurist. I know that you will understand why when you hear him speak. I introduce to you the Honorable Charlie Baird.
Texas Court of Criminal Appeals
By Charlie Baird:
Good evening. I want to begin by thanking Phyllis Frye for inviting me to speak tonight. Phyllis called me several months ago, and I readily accepted her request. You see after everything Phyllis has done for me and the type of person that she is, I feel somewhat obliged to do whatever Phyllis asks of me.
I will never forget the first day I met Phyllis. She immediately impressed me as being a very warm caring and generous person. I had just begun my campaign for the Court of Criminal Appeals, and I was trying to raise some funds. I approached Phyllis, told her of my campaign and what I would do if elected. And I asked her to contribute $50. Phyllis said, "Charlie, let me explain to you my situation. Next week my mother is going into the hospital for bypass surgery. Without that surgery, she simply has no chance of survival. She has no insurance, and the surgery will cost $19,000. On top of that, my brother was in a tragic automobile accident and needs an artificial arm to keep his job and support his wife and three children. That will cost $12,000. And if that were not enough, my son injured himself playing football many years ago, and now he needs reconstructive hip surgery just to be able to walk. That will cost $10,000." Phyllis then looked at me in the eye, kind of sad, and she said, "now Charlie, how can I say yes to you after saying no to my own family?"
Seriously, I am both honored and pleased to be with you today. I am pleased to be back in Harris County, where I lived and practiced law for a number of years. It is nice to be home, and I am truly honored to participate in this, the First International Conference on Transgender Law and Employment Policy.
I think this is important, what we started here this year. As a judge on the Court of Criminal Appeals, I am asked to speak at many seminars across the state. Most of the participants in those seminars are there to fulfill the number of hours of legal education required to maintain their licenses to practice law. I have found for those of you who are lawyers that there is something magical about being a judge. I can speak for approximately 20 minutes, and everybody gets roughly an hour of credit for hearing me speak.
I routinely address those seminars and speak on some area of criminal law to provide what is known as a view from the bench. In that regard, there are several areas of our criminal justice system where the transgendered community is or has been directly affected. History is replete with instances of discrimination in the transgender community.
Crossdressing, as Phyllis told you, was illegal in the City of Houston since 1904 until 1980 when the ordinance was repealed. We really do owe Phyllis a debt of thanks and gratitude for her work in repealing that ordinance. There are still ordinances on[page 110] the books, restroom ordinances that do not require some type of culpable mental state or some intent to disturb and disrupt, that can still be used to harass those in the transgender community. Furthermore, when those in the transgender community are arrested or imprisoned they should be segregated, both from the straight and gay community while in confinement.
And the attorneys representing members in the transgender community should be worried of disposing of a case of a transgender defendant at the first court setting. I feel the transgender defendants may not be in a position to make an informed decision regarding their cases. Too often, they are deprived of their medication, harassed while in confinement, and appear in court with little sleep. Perhaps the attorney can better serve his client if he secured a bond and the defendant were released from custody allowing the case to be discussed without any pressure, rather than disposing of the case on the first day, at the first court setting.
Finally, and this is probably the most important thing I would like to say about it, it is imperative that those confined in either jail or prison not be deprived of their medication. Others in confinement have access to their medication, and no one should be denied such access on the basis of sexual orientation.
I view this opportunity to speak with you tonight differently from any other seminar for two reasons. First of all you are not here merely to get credit for your time. Although, that may be a side benefit. Rather, I believe, you're here as Phyllis said, to gain knowledge which will lead to empowerment for those in the transgender community. Secondly, I am not here to provide a view from the bench. Rather I see my role as perhaps providing a perspective on the transgender's community position in our society and how you can achieve the empowerment you seek, the empowerment you seek of equal opportunity under the law.
When Phyllis and I met to discuss my remarks, we discussed the possibility that politics might come up. As a statewide elected official who was presently running for re-election, my speeches these days normally refer to politics. That's second nature to me. So I asked Phyllis if it would be appropriate for me to discuss politics. She said it would be appropriate so long as I gave you a warning and so please consider yourselves warned.
The most important thing any segment our society can do to achieve empowerment is to organize. Only through organization can there be unity, only through unification can there be strength, and only through strength can there be empowerment. The most appropriate and effective way to achieve empowerment is through the elective process. Arm yourselves with knowledge, inform yourselves, question the candidates, be they Republican or Democrat. Find out their positions on the issues important to you.
It is easy to arm yourselves with information this year. It is clear where the parties stand on the important privacy issues[pages 111] of choice and sexual orientation. In the copyright story recently by the Baltimore Sun, the Sun reported that the GOPs will publicize the differences between the party platform on the issue of homosexual rights. The remaining remarks of mine will address and deal a lot with homosexual rights. I realize that is not the only thing that the transgender community is concerned about, but as Phyllis said, the things that affect the homosexual community and sexual orientation are going to affect the transgender community without question.
So let's talk about the two platforms for just a second. The Democratic platform reads, "Democrats will continue to lead the fight to ensure that no Americans suffer discrimination or deprivation of rights on the basis of sexual orientation or other characteristics irrelevant to ability." The Republican platform reads, "We oppose efforts by the Democratic Party to include sexual preference as a protected minority receiving preferential status under civil rights statutes at the federal, state and local level."
At the Republican Convention, Patrick Buchanan launched the attack describing the Democratic ticket as the most pro-lesbian, pro-gay ticket in history. In just two days, in an effort dubbed "September Storm" according to the Dallas Morning News, the GOP will kick off an intense effort to try to Governor Clinton as an extremist on social values and a supporter of gay rights. According to the Dallas Morning News, GOP strategists plan to distribute quotes from officers of a gay and lesbian political action committee noting that Governor Clinton is the best candidate the Democratic Party has ever nominated on gay and lesbian issues. The article continues. The Republicans said they will remind conservative Texas voters that Mr. Clinton, get this, that Mr. Clinton has promised homosexual advocates that he will appoint them to high levels in his administration.
Last week at the Republican Convention right here in Houston, speaker after speaker referred to traditional family values. Those speeches were nothing more than attempts to drive wages between the state and gay communities, because according to the Republicans, Gays and Lesbians are immoral. This is the position of the GOP even as this administration has prohibited patriotic and qualified men and women from serving in the military based solely upon sexual orientation. This is the position of the administration even though gay and lesbian Americans have shown family values when caring for people with AIDS, whether they be straight or gay, and isn't that the ultimate in family values -- to care for those who cannot care for themselves.
On May 18th in 1992 at the Palace Theater in San Francisco, Governor Clinton made a very significant speech. In this "September Storm" his comments will be taken out of context to make Governor Clinton sound as if he is against family values. You can rest assured that those most critical of the homosexual and transgender community will demagogue the homosexual rights issue to inflame those to vote against candidates who are sensitive to[page 112] such issues and your concerns. That is because people have a predisposed bias against the transgender community and the expansion of gay rights.
Well, before "September Storm" hits, let me spend my time with you tonight setting the record straight. Let me share with you some of the remarks made by Governor Clinton in his speech to the gay and lesbian community of San Francisco. Governor Clinton said, and I quote:
[page 113] silence. This nation owes you thanks for that and I want to give you my thanks and respect for that struggle today.
Finally, let me say again this is not an election about race or gender or being gay or straight or religion or age or region or income. What kills this country is not the problems it faces. There will be problems until even the end of time. What kills the country is to proceed day in and day out with no vision, with no sense that tomorrow can be better than today, with no sense of shared community. When I came here today to tell you __ what I came here today to tell you -- in simple terms is that I have a vision, and you are a part of it. I believe tomorrow will be better than today if we act. And we are all a part of the same community, and we better start behaving as if we are. If I could wave my arm for those of you who are HIV positive and make it go away tomorrow, I would do it, so help me God. Let us never forget there are things we can and cannot do. But the beginning of wisdom is pulling together and learning from one another and being determined to do better."
Those are the words of Governor Clinton. Those are the words the GOP believes shows a lack of family values. Those are the words the Republicans will take out of context and use to divide this nation in our communities if we let them. You can prevent that division but only if you vote. Show your strength at the ballot box. Only through strength can there be empowerment, and only through empowerment can there be equal opportunity under the law.
Those sensitive to the pride of
the transgender and homosexual community can stand with you only if you
have the courage to stand with them. Thank you for having me tonight,
and God bless you.
MILITARY LAW PROJECT
Sharon Stuart is going to speak about Military Law. She's our first moderator. She is obviously qualified. She received her law degree from the University of Missouri at Kansas City. She holds a Masters in law librarianship. She served in the Military during the Vietnam Era as a Judge Advocate for the U.S. Marine Corp, and she knows an awful lot about Military Law. I know that if I knew then what I know now I would not have given up my regular Army commission quite so easily back in 1972.
Sharon Ann Stuart, Director,
By Sharon Stuart:
Thank you, Phyllis, I am very honored to be here and to participate in the conference. And I'd like to thank before I start, because she may leave in the middle of the presentation, my wife whose come all the way from New York with me to share this experience. Ginger sitting here in the front row.
Phyllis isn't the only one who can tell a good story. I hope this will be a good story, it's certainly pertinent to our subject. I'll begin with this antidote because it illustrates some of the essential problems that the transgender military person faces. And during my presentation when you hear me use the acronym, T-M-P, if I do use it, it stands for Transgendered Military Personnel. That's a good military practice adopting acronyms so I hope you won't mind my adding that to our growing lexicon of terminology. So the term is Transgendered Military Personnel.
The year was 1970. I was a Captain in the U.S. Marine Corp. I was a lawyer, a military Judge Advocate. I was assigned as the Chief Defense Counselor at a large Marine Corp base in the United States. This command was processing over 300 general special and summary courts marshal each month. Twelve lawyers worked in thedefense section including myself and another dozen or so were on the prosecution side. Our work loads were staggering. We each carried more files than we could possibly process and do so on a rational and effective way. Many cases, of course, involved the Military's unique crime desertion and absence without leave.
When you work for the U.S. Military, it's not like working for General Motors. If you're absent from work they just don't dock your pay, they might put you in jail. Service in the U.S. Armed Forces is not the usual employment contract. It is a form of indenture, a form of slavery, if you will, because many served involuntarily and even those who served voluntarily submit to this unique contract. Your time is not your own and you are subject to uniform code of military justice which is a legal system within a legal system subject only to our federal constitution.
There were many felony cases as well as the desertion and absence without leave. These ranged from premeditated murder to armed robbery, rape, extortion and even arson cases. It was a confusing chaotic and disturbing time in our lives and in our history in the midst of a terrible war, the Vietnam War.
One morning as I reached my desk, a colleague approached and said, "Have you heard about Berryhill?" Berryhill was an acquaintance we had both known, and I am not using his real name. We had both known Berryhill in training, at Cuanaco, and Berryhill had just returned from Vietnam. He had served his infantry platoon commander near the D-M-Z, and he'd seen a lot of combat. He'd been wounded, not too seriously, but he had returned and earned some well deserved decorations for his service. "What about Berryhill," I responded.
I was totally unprepared for news my colleague imparted. Berryhill, my friend informed me, had been arrested by Military Police the night before. He'd been found on a street at 2:00 a.m. in the Officer's housing area, drunk. But that wasn't the real news. Marines got drunk every day and often got arrested for it. When Berryhill was arrested, he was dressed entirely in women's clothing borrowed from his wife's wardrobe. It had developed that he was a cross dresser.
That case took a very unusual course at first. We had an officer in the judge advocate department at the base command who was very homophobic, and who saw the Berryhill case as an opportunity to make an example of any Marine who would dare put a dress on ___ not being female. That officer attempted to get this case referred to a general courts marshal which would have led to, of course, a dishonorable discharge and a conviction___ which would have been almost a certainty.
As Chief Defense Council, it was my job to assign this case. I felt a little terror in my heart, because I too committed this crime, this same crime almost weekly, if not daily. I had recently emerged from my closet of many years, had been in touch with Virginia Prince, had joined what has then since become Tri-Ess had participated in meetings of Tri-Ess off base, and was in touch with the community for the first time. I had told my wife just a year or two before. I was trying to deal with cross dressing issues in my own life and trying to get through the military myself without them discovering. The Berryhill case was a shock to my system as you might imagine. Another officer took the case, and I worked with that officer to try to get Berryhill through the system in as good a shape as could be done. It was not an easy task. I won't bore you with all the ins and outs or details. We did manage to convince our superiors that a court marshal was not warranted in this case. He had served admirably in Vietnam, had been decorated, had given the Marine Corp no reason to be concerned about him as an officer until his arrest, cross dressed. The officer who wished to have him court marshaled eventually lost that argument. Berryhill essentially was administratively booted out of the Marine Corps and allowed to resign for the so-called good of the service. He disappeared. Through Virginia Prince, I made arrangements for literature, what literature existed at that time about our organization, to be sent to him. I haven't seen him since. I have never met him again. I do not know what happened to him. His case in many ways is very typical and very ways it's untypical. There is no clear path for transgendered military personnel. There is no clear answer for them in the military. There are some things which can be said, and I will try to outline for you some of the ways which the military has in the past and which they continue to use to deal with transgendered personnel when they are confronted with the issue.
It is not untypical for the military to become confused when confronted with a cross dresser or transgendered person and to confuse them with the homosexual community. Indeed, a transgendered person or cross dresser may be homosexual as we know or bi-sexual. Very often, however, sexual preference is not the issue. And the issue is simply, why does this person wish to wear dresses as a male, and that becomes the focus.
However, there have been instances in which the military confused homosexuality and cross dressing and tried to discharge personnel as homosexuals when indeed they were not. There is a growing body of evidence that many people discharge from the service under the homosexual regulations are indeed not homosexual. A recent article in the New York papers detailed the phenomena where women are discharged from the service as lesbians and indeed are not lesbians but are accused of being lesbians. This is another issue, of course, but it is reminiscent of the confusion which exists over the transgendered person. It is a crime under military law to cross dress, to wear clothing that is inappropriate to your sex, to flaunt military regulations concerning uniform attire. Those regulations extend to underwear, believe me. There is such a thing as military underwear, for better or worse. They don't have inspections for the most part but indeed those regulations do exist in all of the services. Articles 133 and 134 of the UCMJ, __ the acronym for Uniform Code of Military Justice __ are the two articles which are of most concern to officers with a list for cross dressers. Article 92, which deals with disobeying orders, is also a great concern because it is that article which is sometimes cited as violation of uniform regulations, as is applying to the violation uniform regulations. I'd just like to read into the record the substance of Articles 133 and 134 so we know what we're talking about. Article 133 reads, and I won't read all of it but I'll read the essential parts, Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court marshal may direct. Elements: 1) that the accused did or omitted to do certain acts and 2) that under the circumstances these acts or omissions constituted conduct unbecoming an officer and gentleman. 1) Gentlemen as used in this article, Gentlemen includes both male and female commissioned officers, cadets, and midshipman, 2) Nature of offense. This is under subparagraph C. Conduct violating of this article is action or behavior in an official capacity which in dishonoring or disgracing the person as an officer seriously compromises the officer's character as a gentleman or action or behavior in an unofficial or private capacity which in dishonoring or disgracing the officer personally seriously compromising the person's standing as an officer.
There are certain moral attributes common to the ideal officer and the perfect gentleman. A lack of which is indicated by acts of dishonesty, unfair dealing, indecency in decorum, lawlessness, injustice, or cruelty. Not every one is or can be expected to meet unrealistically high moral standards. But there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person's standing as an officer, cadet, or midshipman or the person's character as a gentleman. This article prohibits conduct by a commissioned officer, cadet or midshipman which, taking all the circumstances into consideration, is thus compromising. This article includes acts made punishable by any other article, provided these acts amount to conduct unbecoming an officer and a gentleman. And then some examples follow. Article 134 is even more sweeping. The text of Article 134, the so-called general article reads: Though not specifically mentioned in this chapter all disorders and neglects to the prejudice of good order and discipline in the Armed Forces. All conduct of the major to bring discredit upon the Armed Forces and crimes and offenses not capital of which persons subject to this chapter may be guilty shall be taken cognizances by a general, special, or summary court marshal. According to the major and degree of the offense, it shall be punished at the discretion of that court. The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the Armed Forces or of a nature to bring discredit upon the Armed Forces then the following proof is required. 1) That the accused did or failed to do certain acts, and 2) that under the circumstances the accused's conduct was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. Following that is a great deal of explanation and many, many examples and specific pleadings or specific offenses and the requirements that are under that particular article. None of those specific paragraphs deal essentially with cross dressing, but there have been cases, not a great many of them, but enough for us to know that a criminal offense can lie under these two articles. Essentially cross dressing or transgendered behavior while a member of the military service is a crime and we need to keep that in mind.
Our behavior as criminals in the Marine Corps was not damaging in any way. I want to say that most of the cross dressers I know who have served in military services had served honorably and well, had been a credit to the military service and a credit to this country. It is of great concern to me that our behavior would be perceived legally to be a crime, but that is presently the reality.
Non-judicial punishment under Article XV of the UCMJ is a way of disciplining service personnel. It has lesser implications than a court marshal and does not lead to discharge, but it does reflect on service records and in fitness reports. It largely consists of counseling, of fines and is used by unit commanders to maintain discipline within their command. The legal standards for non-judicial punishment are much lower and there have been instances of cross dressers receiving non-judicial punishment. Administrative separation is another path which is quite common. This is done in the services in various ways by Board action. Usually a Board of three officers may be appointed, and various reasons can be cited for the separation. Those separations can lead to bad conduct discharges which are less than honorable. The penalties for a bad conduct discharge are very similar to dishonorable discharges or general discharges which may be assessed by court's marshal. Administrative separations also frequently lead to resignations by officers, resignations for the good of the service. Essentially the service says to the officer, if you will resign your commission we will forego other proceedings. It's almost a form of plea bargaining. This indeed was the disposition eventually of the Berryhill case. Resigning in disgrace. Medical separation is another possible path, but instances of this are rare, and I have no case to offer at this point. I would not be surprised if there was one. It would be most likely to arise as a result of combat duty. One could have argued in the Berryhill situation that his cross dressing behavior was a product of combat stress. That, however, was not done. It did not even occur to us at the time that that was a possible solution. That defense was not made as I recall. Arguably a person who is a cross dresser, or whose cross dressing or transgendered behavior is manifested for the first time in the service after a long period of combat, a psychiatrist might see that connection. But we have no known cases to cite. Medical separation is an honorable separation. It may result in disability payments if the disability is evaluated at a high enough level. It may just result in separation and the disability assessed at a lower percentage and essentially no benefits offered.
Retirement voluntarily, is another option when one retires from the military, of course, voluntarily after a period of years and receives retirement benefits. There may well have been instances of cross dressers who chose that route to go. They were career people who reached a point and said, I am ready to get out. The military may have learned of their cross dressing or may not have learned of their cross dressing. Very often when Marines were very close to retirement and were faced with minor legal problems or charges, the command said let them go if they agree to retire and do so in a timely fashion. We will not press the charges. That remains an option but it's a sort of back door option for transgendered military personnel in those very specific circumstances.
Involuntary retirement is another matter after reaching your 20th year. You have, in many services and in many situations, the option of going on to 30. But you may not have that opportunity if the military learns of your transgendered behavior. They may in effect initiate proceedings which put you on the retired list whether you like it or not. So, involuntary retirement may terminate a transgendered person before they are ready to leave the military service. There are some instances of this known to us. Another option which is probably the least desirable is just to remain in limbo. The service has found out about your transgendered status in the military. It has become known. You're not charged with an offense. Nothing in effect is done. You'resimply kept on duty for the duration of your enlistment or career and subjected to whatever harassment the knowledge brings from others around you. We have several cases of this, and I want to share one of them with you in some detail. There is presently in the military service on active duty an individual who is transgendered, who is a heterosexual cross dresser potentially transsexual, potentially remaining as a heterosexual cross dresser. This individual's family broke up with a divorce in 1986. In a dispute over base housing this individual's spouse informed command of her husband's cross dressing. This was their first knowledge that this individual had gender dysphoria. I should say of his background that he has a very important MOS and a very important role in the military. The military has made a huge investment in his training and he is a valued member of this Armed Forces. Within a week after being informed of his cross dressing by the wife, without investigation of any sort, they just simply called him in and said we are sending you for psychiatric evaluation. They ordered him to a base to a hospital for 30 days where he was subjected to a great many tests, and of course he cooperated. At the end of this 30 days, a team of doctors and psychiatrist pronounced him entirely fit to perform the duties of a service officer. They sent him back to duty.
In the meantime, he had become the subject of a great deal of comment and common knowledge in his command. In various ways, this knowledge leaked out and was spread about the base to his friends and work associates and to many strangers.
It became such a subject of comment in the command that he received this counseling letter from his commanding officer. He has sent me several documents which I have permission to share with you, but I will not share essential details about location name or other fact and circumstances which I do not feel are appropriate for this record. The subject of this memo is formal counseling, and I think this gives some inside into the military's mind set about cross dressing and transgendered behavior. The first paragraph reads: I have recently reviewed a copy of the recommendation from your medical evaluation conducted in 1986. This particular document by the way is dated in June of '92. The medical evaluator recommended that had you receive counseling. At the end of last year you expressed dissatisfaction with your counseling program and you decided to discontinue it. In your best interest I have decided to schedule you for another medical evaluation to determine if further counseling or other treatment would be beneficial and provide updated information on your current medical situation. You will be advised of the date and time of the evaluation as soon as scheduling is complete.
I've also learned from several sources that you've openly spoken of your transvestism and have on occasion failed to police aspects of your appearance in uniform. This is not inducive to good order and discipline and adversely affects the morale of this community. I am ordering you to restrict all public display evidence of transvestism to include in the display from the presence of your suite mate and to limit all discussion of your transvestism while on duty to the commander, first Sergeant, or health workers. I remind you that as a Senior noncommissioned officer you are expected to maintain the highest standards of dress and appearance in accordance with regulation umtium. The wearing of fingernail polish, makeup, female clothing, etc., while on duty is a violation of regulation and so on. If this occurs I will seriously consider taking action against you under Article 92 of the Uniform Code of Military Justice. He had the right, of course, to file a rebuttal to the commander's counseling letter, which he did. It gives us some further insight into his problems and what he's facing everyday as a member of the Armed Forces. In part, I officially request that if you feel I am still in need of a psychological medical evaluation that I be sent to a particular base or some other local area hospital on an outpatient basis. And he goes on about that problem for a while.
Paragraph 2, I have told you that there was no medical justification for another evaluation and that you should contact my therapist that I had seen for over four years for her recommendations concerning your request for evaluation and mandatory counseling. Both the evaluation and your request for mandatory counseling was not recommended.
I do not deserve to be restricted or locked up in a mental ward in any medical establishment along with manic depressant psychotics that are potentially dangerous individuals. I feel that this would be cruel and dehumanizing and totally unwarranted. My medical history in the Air Force records are from one in-patient evaluation and another would only adversely affect my challenges for limitation upon retirement.
I should also like to bring to your attention that there is no knowledge of my cross dressing by my previous commanders. No mention of cross dressing or any other problems were ever submitted until you assumed command of this organization. It was under your command at that time that a record was made and several other people were informed. These individuals, without any regard for my privacy or an evaluation of my rights, decided to tell everyone else. Subsequently, it became a well-known topic. This is a direct violation of my civil rights as an individual.
As I have stated before, I take pride in my uniform and what it stands for. I do not take things too far in its image or that of the United States Air Force. I take personal exception to what I do, while at the same time you allow another Master Sergeant to accept his command in uniform wearing an earring. I have worked hard all of my military career. To be so mistreated during my final tour is not only disheartening but distasteful, especially when I did nothing to deserve your non-support. The violation of my rights, that we are here to defend and uphold for our country, and the back stabbing prejudiced N-C-O's are all because of your decision to tell the world of someone's personal medical situation.
In another paragraph he goes on about the freedom of speech. Yes, I have openly spoken of my cross dressing to others that approach me and were curious about this phenomena. I believe being open and frank about cross dressing will dispel the stereotyping and this information that is prevalent in our society today. It's a shame that there are many others with this phenomena which are afraid of what their families and friends may think. We are all children of God and deserve the same understanding, love, support, and consideration, we are all equal. Open your mind and heart and[page 124] try to understand and accept. There are billions of people in the world all uniquely different. They all can't conform to the narrow range of acceptable behavior that society considers normal. As long as people don't harm themselves or others then society should learn to accept us. I've sole searched all my life on why I cross dress and to no avail. I need to accept myself for who I am and what I do in order to enjoy my life.
Your verbal written order for me to limit my discussion of my transvestism to you, the First Sergeant, or health workers is a violation of my right to freedom of speech. Your letter says in regard to my openness about transvestism is not conducive to good order and discipline and adversely affects the morale of the unit. When I asked you the who, what, where, when and why concerning the aforementioned statement you did not respond. I see it as a statement without substance. Additionally, I do not think it is fair for you to restrict me with this order and to allow the bigots to talk freely spreading this information about my cross dressing to every single active duty, civil service, or dependent on this base.
I am unable to defend myself when curious people approach me wanting to learn about this phenomena either because they know of friends or family that have this affliction or because they are just curious. It's the bigots spreading the misinformation and stereotyping that is not conducive to good order and discipline and adversely affects the morale of the unit.
I think that is a very eloquent statement from someone who is experiencing this first hand at the moment.
There are many different factors that will affect the path which a case takes in the military concerning a transgendered persons. Whether you are officer or enlisted can have a great impact on the disposition of your case. Officers are accorded more respect but they are also held to higher standards. Officers are better paid and may better able to afford civilian counsel. Enlisted people are often at a disadvantage educationally and financially.
Whether you are male or female can make a big difference in the military, as we know, and in view of recent events and the long history of the military's discrimination against the minority groups including females. Minority groups such as blacks, hispanics, Asian-Americans may face different treatment. This is a fact. It's regrettable the military has made great strides in race relations in the last 20 years but much remains to be done.
Your commanding officer's views, the type of community the person is serving, the M-O-S or military occupational specialty, the perceived investment which the military has in the individual, are other important factors in what happens to a transgendered person. That person's length of service, their combat record, if any, and their fitness report may also be factors in whether they get a break or not.
The nature in the flagrancy of the gender dysphoria and the objective behavior from the military's perspective is probably the single largest factor. If the conduct is on base or off base it makes a big difference. If it's on duty or off duty it may make a big difference. If it has been the subject of any civilian complaint or charges, that will make a difference. If it involves other service personnel, that is a great concern to the military. The rank, of course as I mentioned, officer or enlisted can, also be a major factor in legal disposition of a transgendered military person's case.
Our committee considered some basic questions about transgendered military personnel. Should the TMP, as I called them, be in the Armed Forces in the first place? Do we have a right to serve as transgendered people? Many minority groups in this country have served and served honorably and have served well. We are in the best of company with the women, and blacks, and other minorities.
Many transgendered people do not emerge until they are in the Armed Forces. They enter the Armed Forces at a very young age and their gender dysphoria is not known to them. When they do enter and it manifests itself, they can being subjected to the extreme homophobia and the hyper masculinity which is present in the Armed Forces. The committee feels that off base, off duty conduct should be tolerated by the military, but, in fact technically, it is a crime whether you are off base or off duty and not in the presence of military personnel. Technically, it makes no difference from the standpoints of the UCMJ.
Are retirees at risk? Reservists and National Guard Members? Yes, retirees are covered by the UCMJ. As long as you're drawing military pay or pension benefits or using military benefits or services as a result of your Armed Forces service you are subject to the uniform code of military justice. But it's unlikely that you will be charged unless your conduct is very public and very flagrant. There are no cases that we know of other than one involving a homosexual admiral whose benefits and commission were removed as a result of his public conduct and involvement with[page 126] other service members after his retirement. Reservists who are in the active reserves are definitely at risk as our National Guard personnel and they are subject of course to the UCMJ.
What are the obligations of transgendered persons who emerged during their enlistment. Do they have an obligation to reveal their status? This is the "catch-22", of course. If they do, they will be discharged or dealt with legally. If they do not, then they are subject to all of the penalties that come from hiding and they may be discovered.
Security clearances may be denied. The military says we don't want these people because they may be blackmailed. The committee felt that a transgendered person is justified in concealing their transgendered status to avoid discharge. But in blackmail, there is a clear duty at that time to seek legal advice and to reveal your transgendered status if you have not done so. No one wants to think that a cross dresser or transgendered person would jeopardize our national security by being subjected to blackmail and revealing secrets.
The committee has drafted a legal do's and don'ts which I will read into the record quickly. The do's: 1) do seek information about gender dysphoria and support from organizations within the gendered community. We would advise people to write to IFGE, the International Federation for Gender Education for a directory list of gender community organizations and support groups. 2) do express your gender of choice and participate actively in gender community organizations, but do so only when off duty, out of uniform and not physically on military property or in the presence of other military personnel except those who are also members of the gender community. And the note is even cross dressing which is confined to off duty hours and which occurs off base and not in the presence of other military personnel may be subject to criminal prosecution under Articles 133 and 134 of the UCMJ. Currently, there are no known military prosecutions under Articles 133 and 34 of the UCMJ based solely on off duty, off base conduct but such prosecutions are probable under Military Law. We're checking that because it may very well that they had been, and my research is not complete, but that is our statement for the moment.3) do obey all military regulations and policies regarding dress and personal appearance. The wearing of underwear appropriate for the opposite sex under regulation military uniforms can constitute a criminal offense under Article 92, UCMJ, as a violation of general order and regulations. 4) Do seek legal advice from a military judge advocate and/or a civilian lawyer regarding your rights if you are arrested and charged with an offense linked to your gender dysphoria, and if you are exposed as a transgendered person, and if you are blackmailed by a third party who has learned of your gender dysphoria. Note: Armed Service [page 127] regulations may not provide for military counseling unless you are charged with a criminal offense or subject to administrative proceedings or physical evaluations for a proceedings. In this event civilian counsel must be retained at your own expense. 5) do exercise your constitutional and Article 31 UCMJ right to remain silent and to refrain from self incrimination if you are the subject of a military or civilian investigation from which criminal charges could arise. 6) Do serve your country in time of peace and war. Uphold the Constitution. Obey all military orders and regulations to the best of your ability. The note is that thousands of transgendered persons have served their country honorably and with distinctions as members of the Armed Forces.
Now here are the Don'ts: 1) do not wear outer or under clothing, cosmetics, or jewelry which is inappropriate for your biological sex while off duty or while you're on military property or in the presence of other military personnel. 2) do not discuss your gender dysphoria with other military personnel except those who approach you directly concerning that subject and while acting in their official capacity. For example, a military police investigator, a commanding officer, a medical officer, or a psychiatrist. Note: Be aware that military doctors and psychiatrists are not bound by doctor-patient privilege rules and are obligated to report cases of gender dysphoria to command. Transgendered military persons who are ordered to undergo psychiatric evaluation must comply but should seek legal counsel if possible before psychiatric evaluation or medical evaluation proceeds. Military chaplains are bound to confidentiality and may be consulted regarding religious concerns without fear of exposure.3) Do not feel obligated to reveal your gendered dysphoria in response to general questions on recruitment, medical or security clearance questionnaires. For example, are you now, or have you ever been treated for mental disease or defect. Or do you know of any reason why you cannot serve in the U.S. Army. Note: transgendered military personnel who are asked directly to specifically confirm or deny that they are gendered dysphoric by military authorities should seek legal advice before answering. Obtaining security clearance, clearances or re-enlistment contracts and bonuses by intentionally concealing gender dysphoria may subject the individual to criminal charges and other penalties. For example, suspension of the security clearance, revocation of re-enlistment contracts, the return of bonuses as well as criminal perjury charges. The re-enlistment situation is a tricky and if a person in that situation answers falsely and they have information to the contrary it could subject you fairly serious criminal charges.
I have made these recommendations for future action and I'll give them to you as quickly as I can. A permanent military law committee within the gender community should be established, to carry out the following tasks. We need to form that committee from ex-military lawyers who are members of the gendered community or who are sympathetic to our cause. We need to collect pertinent military laws, regulations, policy statements and case law regarding transgendered military persons. We need to enlist the cooperation of the gendered community organizations in this effort. We need to draft and disseminate a military legal do's and don'ts pamphlet which I've given you one draft of. We need to send that out to all gendered community organizations for distribution to interested military personnel. We need to monitor cases and programs, cases and programs rather. We need to monitor cases and progress and to publicize them to the community as appropriate. We need to provide information to the legal counsel representing transgendered military personnel nationwide.
And we have a toll free number. 1-800-824-7122 [year 2001 note: this number is no longer a working number] will reach my office and I'll try to get you to the right people or try to give you whatever help is needed.
We need to publish a bi-annual news bulletin reviewing developments in Military Law and providing up-to-date guidance for transgendered military personnel. And we need to compile a list of all gender community members who have served honorably in the Armed Forces. I'm told that someone has attempted to do this, but I am not presently in touch with them, and if anyone can indicate to me who that is, I will be very interested in that information. Future transgender law conferences and planning sessions should include military law component. There are third strategies, our long-range goals. These are sort of a wish list. We'd like to educate the military community regarding gender dysphoria and gender issues. We see that as the key rather than legal precedent or court action. We need to decriminalize this conduct as it relates to gender dysphoria at least in the off-duty, off-base status, if not further. And we need to involve active duty judge advocates and medical and psychiatric personnel from the military in our future transgender law conferences, if possible.
The U.S. Army's favorite recruiting slogan reads, be all you can be, join the Army. But the fine print reads, don't be gay or lesbian, don't be disabled and above all don't be a cross dresser or a transsexual. Not too long ago the Army's fine print use to read, Don't be black or hispanic or Asian-American and if you are a woman don't be assertive.
In spite of the shortcomings, the Army and the military services have at various times in our history and various ways acted as a social laboratory, and as an instrument for social and cultural evolution. We have many examples of that. It's our hope that the military will reform itself and will welcome us into its ranks and that we can continue to serve our country honorably.
By Phyllis Frye
I am really excited about that
report because that did exactly what we've been wanting, a report on the
current status of the law, how bad it really is in that area. I would
like to also remind you that those of you listening or reading that if
you are in the military and you do have a problem she just left her
1-800 number. I suggest that you call them. The presentation that Sharon
did was fantastic and I know that the next seven speakers are going to
have a difficult time matching it, however, I also know that Sharon is
going to have a tough time keeping up with them because all of our
speakers so far and I know from listening to them in committee are
HOUSING LAW PROJECT
Keith K. Stewart is a member of the Bar Association for Human Rights of Greater Houston, and I've known him for about 10 years. Keith is an advocate. KEITH IS AN ADVOCATE. As a young man he was one of the plaintiffs in a case that was filed against Texas A & M University contesting its policy which refused to allow gay/lesbian student groups to meet on campus. This case went all the way to the 5th Circuit Court of the United States, where they won. It went to the United States Supreme Court where centiorari was denied, in effect affirming the 5th Circuit's decision. What better person is there to tell you how to hold on to the place where you live when some bigot is trying to evict you. Keith.
Keith K. Stewart, Attorney
By Keith Stewart
Good morning. Well thank you for that introduction Phyllis. I got here this morning, and I went over to the registration room. There were all these outlines and handouts. Then I listened to Sharon, and I got more and more apprehensive. I've never been known for doing anything according to the program, and I don't expect them to do that today.
First of all let me show you my T-shirt. For those of you who are reading this transcript, here is a T-shirt with the Bill of Rights on the front of it and then stamped in big bold letters over that is "void where prohibited by law." That is sort of the state of the law with respect to housing rights in this country. Not only for transgendered persons but for everyone.
In terms of law respecting protection from discrimination in the area of housing, the housing committee came up with that there ain't none. That is an accurate statement of what the law is. In terms of Federal Constitutional Law one of your speakers later on this afternoon will be talking to you about the fact that there are certain clauses of the United States Constitution which guarantee equal protection of the law. That is in fact true. The problem is that the definition of who that applies to has been strictly limited. It does not include transgendered persons.
Basically, the bottom line on that is, you're going to have to make yourself known and let these folks know, that have the power up in Washington, that you are transgendered and you do in fact vote. That despite what they may think, you are subject to the terms of the equal protection clause and the due process clauses of the United States Constitution.
At the present time the equal protection clause is limited to race, religion, ethnicity, national origin, and creed and sometimes sex. Sex, male, female, has been the outer most reaches of the clause and there are situations in which the United States Supreme Court says that yes discrimination based on sex is unconstitutional and there are situations where the court has said that no it is not. So, it's sometimes yes and sometimes no on sex.
One thing you have to remember when you're talking about Federal Constitutional law is that you have eight old men and one old woman sitting in Washington deciding what your rights are. For better or for worse, whether you like it or not, these folks are in view with what we have come to call traditional values. There is no stretch of the imagination under which transgendered persons are going to fit under traditional values any more than gays or lesbians. Those conservatives, the conservative block on the United States Supreme Court, have made it real clear that they're not going to expand protected classes any time soon. So appealing to them and appealing through the federal judiciary, given the fact that Bush and Reagan have made that top heavily conservative, I think is a dead-end street.
Another tact that they've used __ not only restricting the classes to which constitutional protection applies __ is to give a narrow reading to the Constitution. My guess on their philosophy is that if it ain't specifically stated in the Constitution it don't exist. If any of you are interested you may want to read the United States Supreme Court decision in Bowers vs. Hardwick which was the decision upholding George's sodomy statute. That will give you an idea of how the Court is going to handle a transgender issue[page 140] if it ever reaches that court. They took great pains and wrote lots of words to reach back 200 years to what the Founding Fathers thought these phrases meant. There's very little law in it. It's mostly just gut-wrenching, Eisenhower era explanations of the traditional family values. I think that is what you're going to get when we get transgender issues up before the U.S. Supreme Court.
To give you a specific example of the Texas Constitution, we have some Texas Courts and, in fact, the Court of Appeals has recently decided that the Texas Constitution gives more constitutional protection, more privacy rights, and rights associated with privacy rights than does the Federal Constitution. That may be a trend among the States that is an area that is worth looking at.
I don't know how some of you from other jurisdictions select your judges. In Texas we vote on every judicial race. People pick the judges. You will want to know, as a politically active transgendered person, what the view of a candidate for a particular court, whether that's the State Supreme Court or State Court of Appeals or a State District Court. What is that person's view on your State's Constitution as it applies to transgender persons. And you will want to vote that view. That is one avenue available to you.
I know Sharon Stuart said that education was the way with respect to Military Law. I'm not trying to downgrade education but there's something to be said for knocking on the doors of the portals of power. As much as possible. And the way to do that is through the Courts. Some State Laws are not necessarily constitutional.
The Equal Rights Amendment has not been passed nationally, but some States have approved a local Equal Rights Amendment. Texas is one of them, and the language of it is extremely broad. The question is whether discrimination on transgenderal basis is discrimination on the basis of sex and I think that's one area that is worth pursuing.
Thanks to Roxanne, I happen to know that Washington State is the only State that has adopted a statewide anti-discrimination law based on housing and other matters. Washington, I think, is the exception that proves the norm. I don't think that pursuing these issues in State Legislature is going to get very far any time soon. Certainly not in my lifetime, but if it does it will probably be based on sexual orientation.
In other words, once sexual orientation makes an end road into some of these legislatures and laws are enacted protecting people on that basis then transgender persons have a way to get in. So my suggestion is to grab onto the "sexual orientation" and hold tight. It's going to be a bumpy ride. Especially the next four months.
The way I see it, local ordinances are the best way in terms of enacting laws to guarantee housing rights. Local ordinances are the best way to do it, and again thanks to Roxanne for enlightening us on the experience of Seattle. She indicated, in our committee meeting, that it was by virtue of the fact that there was a very vocal and up front transgender community in Seattle, that the city enacted an ordinance which includes the word gender.
The transgender community in Seattle did not merely settle for sexual orientation. They have their own individual protection there and it's because they were vocal about that. They said, hey that's all well and good but we're in favor of protection on the basis of sexual orientation, but we have specific needs. We are not the same community. We need those things addressed, and that's exactly what they did. There are also ordinances in Tacoma which do not, if I remember correctly, do not at this time include sexual orientation. I believe there's one in Austin. There's one in Madison, Wisconsin and other places. So, it can be done, it can be done. It's a lot easier to work with your local City Council than it is to work with the State Legislature. So I think that in terms of getting guaranteed protection the best way to do is through local ordinances in your area. And of course that's going to require that you be up front and vocal. I'll get to that in a minute.
Practical consideration as far as housing issues were concerned and the best way to avoid being evicted from your apartment is to own your own home. Clearly that's not an option for a lot of people.
One thing that you do want to keep in mind, and this applies to whether you're buying a home or whether you're trying to rent an apartment or a house or some other place to live, housing is __ bottom line __ an economic issue. It has to do with the market. We, in our committee, talked about experiences that we have had or had heard of in regard to being denied housing for whatever reason. What I was sort of surprised to find was that most people had not had unpleasant experiences in housing. If you approached a Landlord on the basis of, this is an economic issue, and you have money do you want it or not, and if you make it clear that you are [page 142] quite willing to take your money some place else, Landlords get the message pretty quick.
That's especially true in a situation where there is a real depressed housing market that there are a number of units available and less people to rent them. But you have to keep that in mind: it's the power of the dollar. I know last year the more strident gay activist here in Houston and in other parts of the country took to taking all of their dollar bills and stamping "queer buck" on them or giving out little cards when they went shopping that said, "you just sold something to a queer." I don't know how effective those were or not but it sort of gets the point across that economics is real important. That is the overriding campaign issue this year. That's what people are going to vote on is economics. So if you look at this as an economic issue, it puts it in a little different perspective. It's a different approach than the Rights issue.
Let me let you know that, in terms of practical considerations about renting, the landlord-tenant relationship is one that is established by contract. The contract in this case is a lease. And you are always, always, always better off having a written lease than having no lease at all. The written lease will specify the relative rights and obligations of the tenant and landlord. It will limit the landlord in terms of the rent that can be charged. It will limit the landlord in terms of procedures and reasons for eviction, so it is really important that you get a written lease.
Another suggestion, and I have found this useful for myself too, when you're out shopping for accommodations, ask the management person that you're talking to, to get a copy of the lease. Take your time to read it over! Make sure you understand what's in it. If you would like to retain an attorney to read it over for you and explain it, it's a good idea. If you have a friend that's an attorney, that's willing to do that for free so much the better. Have your friends read it. Sometimes someone can see something that you might not see in the lease that poses a problem or it's unclear. So don't at all be afraid to ask for a blank copy of the lease and review it. There's absolutely nothing that says you must sign this think while you're there in the office. And nine times out of ten anytime you sign a contract, a lease, or any other kind of contract when you're there on the premises you may end up with a surprise later on that you hadn't anticipated.
If the manager won't give you a lease take your money and go some place else. I think most landlords are amenable to letting you review their lease in advance. If they're not amenable to doing that then my suggestion is there's something wrong there. And you need to look elsewhere.
Negotiate, negotiate, negotiate. This is a contract. This is no different from buying a car. You will want to review the lease and once you know what's in the lease you will want to, if applicable, negotiate with the landlord as to what you don't like about the lease. When you're negotiating basically the term of the lease you can negotiate all the other clauses in the lease too. These are not things that are take it or leave it. If there are clauses in there that you want in the lease suggest to the landlord they be inserted. If there's clauses in the lease that you don't like suggest that they be amended or deleted. If the manager won't negotiate with you or the landlord won't negotiate with you take your money elsewhere.
Let them know you're going to take your money elsewhere, and you're going to tell your friends to take their money elsewhere. One problem, in my practice as an Attorney, this is probably the most often, most frequently voiced complaint that I get from people, is on the issue of repairs. It's important in the context of what we're talking today because sometimes a landlord with a written lease will use repair clauses to make life so unpleasant for the tenant that they've got to move out. They don't repair air conditioners or some other fixture in the apartment with the same degree of efficiency as they do other tenants. Makes lifedifficult. You need to look very carefully at the clauses regarding repairs. Who's responsible for repairs. How much the landlord is going to pay. How much you're going to pay.
You need to be particularly cautious with respect to how long the landlord has to make repairs. The law says that a landlord must make repairs within a reasonable period of time. Well, reasonable is a lawyer's word. It means everything, and it means nothing, as most lawyer's words do. You will want to negotiate with the landlord as to what a reasonable time is. You will want to put that in writing, and you will want to make that an addendum to the lease if necessary. That the landlord will repair these defects within 10 days. Within 5 days, if you live in Houston. It's August and your air conditioner is out you want it fixed now. You don't want it fixed in ten days because in ten days you will be cooking from the inside out. There's no way to live in the city without air conditioning so that's something that you can negotiate, something you need to be aware of, and it's something you should negotiate.
Our committee discussed something that's a common feature of standard leases and these are what I call morals clauses. They usually provide that the landlord can evict on the basis of some illegal activity or some immoral activity occurring on the premises. In Houston, we no longer have a cross dressing ordinance so the illegal portion is ineffective, but the morals portion is still there and could still conceivably be used against a transgender person. Again, negotiate. Have it deleted. If the landlord is not wanting to delete it, have the landlord make an exception for transgender activity. Clearly you can understand that if you have just been convicted of capital murder the landlord does not want you residing in this complex any more. But cross dressing is not capital murder. So if you're not successful in deleting the clause all together just have them narrow it and make a decision.
Again, any changes to the written lease need to be in writing and need to be made a part of the lease by making them an addendum! Know the landlord-tenant laws in your area better than your landlord does. This is especially true with respect to leasing from an individual. Leasing a house. Those people never know what the law is. They try all these walks into your house at any time. They think they can evict you for any reason or no reason. That's not the way it works. Know those landlord-tenant laws better than your landlord does, and don't in the least bit be shy to stand up for your rights.
The issue of name change came up in our committee, and I'll frankly admit that I hadn't thought about that. This has been an educational weekend for me, too. I suggest in thinking about what you can do is let the folks at the apartment complex know when you're negotiating the lease. If the name change issue is going to occur, during the period of your tenancy there, let them know that up front and perhaps have the lease refer to it, either in a clause or in a A/K/A situation. You can see a landlord's prejudice up front. With your landlord in your situation, and then you come back and the name change issue comes up, they say well Jennifer is not on the lease. All I've got is a David here and you're not permitted. It can cause problems for you so I think the better thing to do is to approach that issue up front. Either address it with respect to a specific clause or that you will be leasing those premises under this name now and under an assumed name later.
Another situation that was discussed in our committee, again this is a market matter and it's just a practical matter, is the area of town is going to make a lot of difference, as to whether you're going to have problems in housing or not. That was brought to my attention in one person's experience. More affluent areas tend to be more tactful accepting. We know from last week's Republican convention that they're not any more accepting, they're merely more tactful. They are less likely to confront you. They do tend to be a little more concerned with the appearance of where you're living. As long as the lawn is mowed and everything is nice so that it doesn't disturb the outward appearance of uniformity then you'll be okay. The problem seems to arise in the context of living in poverty sections of town, where they're more curious. There is less social inhibition. Definitely less tact. So that's a consideration that you will want to take in mind.
Another thing is in larger cities like Houston. There is going to invariably be a gay ghetto. And generally, they're pretty nice parts of town. People have come in and redone houses and everything is pretty tasteful, so I think that you will find that there is more acceptance there then perhaps some of the suburban areas. That will want to be a consideration.
I kind of want to sort of segue into something here which will release me into what I'm going to close with. I came out in 1976. I was a bicentennial queer. When I came out it was sort of a lag time. I knew for the longest time that I was gay before I was able to do anything about it. But there was a long period of time when I didn't really know what I was. I just knew that I was different. That didn't really cause any problems until I started getting into Junior High School. I learned what the different was, and I learned that people didn't like it.
So when I came out I sort of not only came out with a bang, but the bang happened to blow up my closet. As Phyllis indicated I didn't get into politics by choice. It just happened. I enrolled in Texas A & M University because there was a man there that I went to High School with and I was in love with him. The story of my life is that he was straight and unavailable. I enrolled nonetheless and got involved in politics through a series of events. It had been decided that the gay organization on campus was going to sue the University. The problem was they couldn't find any plaintiffs. Everybody else was in the closet. Well my parents knew, and I was 19, so I was too dumb to know anything. I said, "well sure, I'll be a plaintiff in this case," and there I was. Not only plaintiff, but I was suing the most conservative University probably in the country. Phyllis can give[page 146] you more background on that. Maybe she'll show you her senior books.
I really didn't know what I was getting into, but I was in it. When we filed suit it was quite a news story. I was on TV, and the rest of my family found out. It was a mess. Boy, it was a mess. I was scared. I was really, really scared. My mother would call me daily and beg me to come home. All these people's aspirations and hopes were riding on me. I was 19, and I didn't know what to do with it.
Those of you who are familiar with Texas A & M during football season, which is a real joy to behold, in the area where they have all the dorms, during football season the dorm committees put up these posters. "Beat the hell out of U of H" or "beat, kick somebody's ass," or all this macho bullshit. Of course, all the women are in it too. They put up these football posters that said things like "Aggies aren't queers" and "kick the hell out of gay student services." I passed this stuff on my way to class. My professors were concerned for my person safety so much so that one of these, whose husband was a Dean, had her husband walk me back and forth to my car.
The Corp[s] of Cadets, which is a particularly unenlightened group of people there, knew that we all sat together as a group in the student center. They took over the Student Center for the entire week after we filed suit. They literally sat in every chair from 8:00 a.m. until 6:00 p.m. to avoid us going in there.
We had to change our telephone number three times. Every time we got a new unlisted telephone number the operator gave it out. So I finally, I just couldn't handle it any more. I came running home to Mother and got involved in politics here. Then I went through a period of time where I did the marriage thing. Iwas marrying everyone in sight, and we did that for a while. Then I found out in 1983 that I was HIV positive. That didn't really sink in until the people that I had come out with and had come up with it began to die. And it became something in me that I've heard expressed here this weekend. Anger.
Anger. I have in the last couple of years harnessed my anger and tried to direct it to the appropriate people. Now I know that the anger was in there all along and it was just directed to me. It was a self-directed thing. We call it shame. I've learned to harness that and direct it to the appropriate target.
What I want to say __ I'll start preaching so watch out __ never thought I'd be a preacher __ this conference represents the vanguard transgenderal politics. In the fact that you folks are out enough to be here at a self-identified function like this means that, for better or for worse whether you like it or not, you are the leaders of this community. You know it sort of like the way I got involved in politics. I didn't intend that, all I wanted was a white picket fence and a station wagon, a couple of dogs, all of that Ozzie and Harriet stuff and when I found out it wasn't available for me, I took a different path.
This has been an education experience for me: this weekend in listening to y'all talk about your concerns. It just occurred to me that I've never heard them before. I've known Phyllis, contrary to what she said __ she was being cordial by saying 10 years __ we've known each other for about 16 years, and of course I was very young when we first met. But this is really the first time that I have every heard these concerns and these issues addressed. And it's really important that you do that. Not just amongst yourselves but in the community at large.
You have to remember that a gay white man is no different from a straight white man. There's really no difference, I mean I guess the one difference would be that gay white men intend to be more__ You can educate them a little bit better. But they're raised the same way. They have the same mind set, and they're just as scared of y'all as straight men are. They may not appear to be but they are.
Transgenderal issues represent the gray area between sex and sexual orientation, and I can tell you that among regular average white gay men, transgendered persons especially male to female are considered to be confused homosexuals. Just like bisexuals are considered to be fence straddling lighting homosexuals. That's a perception that needs to be corrected and only you folks here todaycan do that. You need to educate the Lesbian and Gay Community about your issues. That they exist, that they are not the same as sexual orientation, and that you have a right to be heard. Do not be put off by, "well that's really not our issue." It is their issue. It is your issue, and you need to make it known.
You need to cooperate with Lesbians and Gay groups, feminist, any other groups that serve your political ends. When you're playing politics, and it's great to have coalitions, but you have to keep your own goals and needs firmly in front of you and pursue those with diligence. You all have to keep in mind that you're all fighting the same big bad wolf. The same white heterosexist male and the pin-strip suit that drives a Mercedes is oppressing me and you and women and people who have alternative religious views. It's the same enemy. We get so sidetracked in our differences that we forget. We're individuals and our community is diverse, but we still have the same enemy and we forget that sometimes.
Be prepared to adopt in-your-face confrontation: fuck you, I-am-not-going-away-tactics, if that's appropriate. There is a time and a place for working within the system. My experience has been because of the AIDS issue that sometimes working within the system is giving up. Sometimes you have to go outside the system. You have to realize that the system is sort of a self perpetuating structure and it has a vested interest in keeping you where you are. The system may have to be tinkered with. The system may have to be torn down. If it's appropriate work within it but be prepared to work outside of it. That means if you get involved in political activities and your coalitioning with gay men and they're not being receptive to you, get in their face. Don't let them get away, collar them. If you're working with any other group, take the same approach. That has been in my experience the only way that things have worked in the last couple of years.
I told a fishing story the other day at one of the sessions and of course I am probably the worst fishing person in the world. In Texas we have these awful dreadful fish that are called Hardheads. They're a version of catfish. They have these sharp spines and sharp fins and you know they're just nasty and they're icky, but you catch them with some degree of regularity when you go fishing. They eat your bait and then they won't let go of your hook. While sometimes the only way to get a hardhead, off your hook is to beat the damn thing in the head with a hammer. And sometimes that's the way, the only way you can get your point across is to beat them in the head with a hammer. Make yourself so loud and so obnoxious that they're just tired of listening to you. Sometimes that's the only way it's going to work, and you have to be prepared to do that.
Now that's an individual decision on everybody's part. I didn't come to where I am by some magic of fate or anything like that. It was an evolutionary process and I am where I am now because I've just had enough. Some of you have had enough. Some of you are not quite there yet. Some of you aren't there at all. So, it's an individual thing but even those of you are not comfortable with being strident and vocal and, as the Republicans would say, militant __ I love that word but I always use it derogatorily but I think it's a fabulous word because it gets the point across __ If you're not there, there are other things that you can do.
Phyllis is a great example. Phyllis has been quietly strident, you know. She has not been throwing picket signs. She's done some picket signs but that is not been her modis operandi. She has been herself. She is there for any one to talk to. But, people don't mess with her. I wouldn't mess with her. First of all, she's a hell of a lot bigger than me. And she's gotten her[page 149] point across just by being who she is and that comes from his inner gleam. This is with the Quakers, and it's a Quaker inner light thing. She's hooked into that and so if that's the way you are that's great.
Get involved, I guess is my point. Get rid of shame. You don't need it. Shame is the gift of white male heterosexist today of Christian culture. It's something that they gave to you. You didn't develop it, you have no reason for it, you don't need it, get rid of it. Throw it out the window. Once you've thrown it out the window, or as a process of throwing it out the window, you will be able to develop your own culture and your own values and your own system. And that's when the cycle starts. Once you have done that you can take pride in your accomplishments and you can take pride in your own culture.
It's a process of emphasizing your similarities to each other and your differences from other groups. There's nothing wrong with that. We're not all the same. But the sameness is in that hatred, that anger, that is in each of us because of our experiences, whether we're in touch with it or not. And you need to harness that and direct it towards the appropriate person, appropriate target.
Don't buy into white male heterosexists notions of appropriate female roles or behavior. If you adopt traditional notions of womanhood, you lose. That will be how they will get you after the change and make you buy into their ideas of what women should be. You be who you are. And if that means being untraditional, then that's what that means. Don't let them define you, don't let them set the standard for your behavior for your dress, for your thoughts. That's something that you need to do on an individual and collective basis.
Boy, I really am preaching, aren't I? Traditional family values __ hear a lot more of that in the next four months and let me tell you what I think it is. Your family is in this room right now. This is your family. Now you may have biological family, but this is the family that in the long run when all is said and done is going to support and nurture you. Your brothers and sisters are the ones who can't be here at this conference for whatever reasons. And your children are the transgender boys and girls who don't have a clue about where they are. That's your family.
And let me just say one thing in closing. Actually one comment. And that is that the next four months are going to be pretty ruckus. I encourage you to get involved. I just want you to remember that the big bad wolf wears a Bush/Quayle button.
By Phyllis Frye:
I think he gave you really good
matter of facts do's and don'ts on how to protect yourself, how to keep
your place to live and how to make sure somebody can't arbitrarily take
away. I told him to preach because Keith's come a long way and I've
watched him evolve both on his own issues and on my issues. I am very
excited he's here.
All material on this website
copyright to Phyllis Randolph Frye. Esq.
(unless otherwise annotated)
© January 2001, Houston, Texas
Page last updated: Sunday, January 28, 2001 02:31 PM