Transgender activist Sarah McBride won a Democratic state Senate primary in Delaware on Tuesday and is poised to make history as the first transgender person elected to the General Assembly.

McBride defeated Joseph McCole to advance to the November general election. The Senate district in contention stretches from northern Wilmington to the Pennsylvania border, and has been held by Democrat Harris McDowell since 1976. McDowell, who is retiring and has endorsed McBride, is the longest-serving legislator in Delaware history.

Democrats outnumber Republicans in the district by more than 3-to-1, and McBride is the heavy favorite against Republican Steve Washington in November.

Transgender activist Sarah McBride won a Democratic state Senate primary in Delaware on Tuesday and is poised to make history as the first transgender person elected to the General Assembly.

McBride defeated Joseph McCole to advance to the November general election. The Senate district in contention stretches from northern Wilmington to the Pennsylvania border, and has been held by Democrat Harris McDowell since 1976. McDowell, who is retiring and has endorsed McBride, is the longest-serving legislator in Delaware history.

Democrats outnumber Republicans in the district by more than 3-to-1, and McBride is the heavy favorite against Republican Steve Washington in November.

“I would be legislating based not on my identity,” McBride added. “I would be legislating based on my values and on the needs of my constituents.”

McBride’s campaign has generated interest from around the country and more than $250,000 in donations, eclipsing fundraising totals even for candidates for statewide office in Delaware.

McBride’s priorities include paid family and medical leave for all workers, reducing costs and increasing competition in the health care industry, and strengthening public schools.

After serving as student body president at American University, McBride started in politics as a volunteer for Matt Denn during his successful 2004 campaign for attorney general. Denn and McBride’s father both worked at a Wilmington law firm known for its close ties to the Democratic Party establishment.

McBride later worked on the campaigns of former governor Jack Markell and former state attorney general Beau Biden.

McBride, who interned at the White House during President Barack Obama’s administration, made history at the 2016 Democratic National Convention by becoming the first transgender person to speak at a major party convention. McBride later served as national press secretary for the Human Rights Campaign.

California Seeks to Expand its Board Diversity Mandate

After testing the waters with SB 826’s gender diversity mandate, California’s legislature has further committed the state to equitable board representation with its new measure, AB 979, which was passed on September 1. If Governor Newsom signs the bill into law by the September 30 deadline, California will (once again) lead the way in statutory diversity and inclusion mandates for public company boards.

It remains to be seen whether the measure (if signed) will survive legal challenge. Multiple lawsuits have attacked the constitutionality of its predecessor legislation, SB 826, and while two cases challenging SB 826 have already been dismissed on procedural grounds, one case that taxpayers mounted to its constitutionality has, to date, survived efforts by State Attorney General Xavier Becerra to dismiss the challenge.

If AB 979 is signed into law, it will require, by the end of 2021, that a corporation subject to the law’s terms (public companies headquartered in California), must have at least one board member from an underrepresented community (in addition to the mandates for female representation). The law defines an individual from an underrepresented community as someone who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or someone who self-identifies as gay, lesbian, bisexual, or transgender.

The bill notes some of the following metrics in support of the measure:

  • There are 662 publicly traded companies headquartered in California; of this number 233 currently have all white boards of directors.

  • Of 662 publicly traded companies, 13% have at least one Latino board member, 16% have one African American board member, 42% percent have one Asian board member, and 6% have at least one non-white or “other” board member.

  • 100% of the 662 publicly traded company boards have one white board member.

Some critics of the legislative solution to board diversity note the legal challenges that quotas pose and also the significant but potentially more impactful efforts that shareholder activism has on effectuating diversity and inclusion in the boardroom. That activism – together with the growing significance of the ESG movement – may speed the process more organically and possibly more effectively as corporations recalibrate their mission and purpose in light of current events, such as the demand for racial equity and the impacts of the Coronavirus pandemic on our economy and social welfare generally.

The impact of SB 826 on gender representation on public company boards is undeniable and perhaps even understated due to potential flaws in the timing and methodology of reporting to the California Secretary of State. That beneficial impact has certainly motivated the California legislature to pursue tackling diversity and inclusion in the boardroom on a much broader scale.  If Governor Newsom signs AB 979, it will open a new chapter in the efforts to make the boardroom more closely reflect the communities that its corporation serves.

*Jen Rubin is a Co-Chair of the 2020 Women on Boards Leadership Committee for San Diego.

Geo Soctomah Neptune, 32, is a Two Spirit member of the Passamaquoddy Tribe who describes themselves as non-binary, trans feminine and gender non-conforming.

They have just won election to the school board in the Passamaquoddy Indian Township, where they will proudly serve a four-year term.

“To my knowledge, I am the first Two Spirit person to run for any kind of office in our community,” Neptune wrote on Facebook.

“I mention this because it is a big part of who I am; being transgender and non-binary is part of who I am, and part of who you would be electing, should you select my name.”

Neptune ran for the school board after being urged by community members and tribal youth, who were familiar with their work as an art teacher in an after-school program. Of the three candidates elected, Neptune received the most votes — about half.

“To almost stand up and say that they’re embracing me in this leadership role as a Two Spirit was incredibly affirming,” Neptune told Maine Public. “I feel very lucky that I live in a place where my community accepts me because a lot of trans people don’t have that.”

Quinn Gormley, executive director of MaineTransNet, says Neptune’s election is a mark of progress in the community.

We expect these electoral victories to happen in Portland,” Gormley said, “but often small communities are more willing to embrace whole identities.”

"As a member of the school board, Neptune hopes to increase student and teacher access to Passamaquoddy culture and ceremonial teachings, and work towards revitalising the native language.

“I feel confident saying that I am a person who makes their opinions known, and is not afraid to speak out against injustice when I see it,” they said as part of their campaign.

“I care for our culture very deeply, and see the preservation of our language and other traditions for future generations as being my first priority… confidence in one’s cultural identity translates to confidence in life.”

The need for universal access to safe, stable housing may have never been more urgent. The grave health risks faced by those experiencing homelessness are only made more severe by this pandemic. Los Angeles, which has one of the highest rates of unsheltered homelessness in the country, has seen numerous COVID outbreaks among unhoused communities, and experts predict that Los Angeles may be facing an increase in homelessness of up to 16% due to COVID. The most marginalized among us are left particularly vulnerable to both the virus and its lasting economic impact.

By permitting shelters to serve people on the basis of "biological sex" without regard for gender identity, this rule would explicitly grant single-gender shelters permission to close their doors to transgender people experiencing homelessness. Mixed-gender shelters would be allowed to force transgender people to access services based on the gender they were assigned at birth instead of their gender identity. This places them at increased risk of gender-based violence and sexual assault. HUD's stated mission is "to create strong, sustainable, inclusive communities and quality affordable homes for all," and to "build inclusive and sustainable communities free from discrimination."

Transgender people face devastating rates of homelessness across the United States. Nearly one-third of respondents to the 2015 U.S. Trans Survey - a major accounting of the experiences of trans Americans - reported being homeless at some point. One in eight said they had been homeless within the previous year.

The survey results paint an even more dire picture for Black trans women, a group especially vulnerable to abuse, violence and HIV. More than 50% of respondents said they had experienced homelessness at some point in their lives, and nearly one-quarter of them reported being homeless within the previous year.

If this rule is adopted, it will endanger trans people. Many of those experiencing homelessness will not seek shelter, fearing discrimination (which nearly 30% of transgender people seeking shelter have experienced) and potential violence (22% of trans people experiencing homelessness report being sexually assaulted by shelter staff or residents). Those who do seek shelter will be more likely to be turned away or harassed for who they are.

In the context of COVID-19, this means that trans people experiencing homelessness will be at a heightened risk of falling ill, since shelters are many communities' best access point to the safe, individual housing options that the CDC stresses must be made available to people experiencing unsheltered homelessness. It's true that, in the time of COVID, shelters might not always be safer than unsheltered living. But individual housing options - such as the hotel rooms offered through California's Project Roomkey - absolutely are. To ensure equitable access to housing, we need to ensure equitable access to emergency shelters.

Enforcing equal access to shelter is the least we can do for transgender people in our communities. They are ordinary people whose lives should never be used as a political wedge issue in cynical campaigns that try to turn neighbors against one another.

Rather than thinking of new ways to make trans people's lives more difficult, the Trump administration should be developing and executing strategies that build on the progress made under the Obama administration, which dramatically reduced homelessness for LGBTQ+ people, veterans and families. The federal government should not target the rights of trans people. Instead, as a society we should be dedicated to helping the trans community, which has historically experienced social and economic harm because of who they are.

All too often, American society has failed to provide crucial and necessary support for the estimated 1.4 million transgender Americans - including one in 50 teenagers - who have lived authentically despite great obstacles. That cannot be the case once again. The Housing Saves Lives campaign is working to stop this discriminatory new proposal, which has a comment due date of Sept. 22. The HUD must uphold its own Equal Access Rule, in both letter and spirit.

People whose identities do not fit into a rigid female/male gender binary have, in many countries, been on a years-long quest to obtain official documents that reflect their identities by using a non-binary “X” marker in lieu of the typical “F” or “M.”

If you have never questioned your assigned gender, you may wonder why access to non-binary gender markers is a human rights issue worthy of lengthy court battles or legislative advocacy. 

The European Court of Human Rights ruled in a 2017 decision – addressing the transition between female and male genders, not non-binary identities – the “conflict between social reality and law” that arises when the government does not recognize a person’s gender identity constitutes “serious interference with private life.” The same is true for those who do not consider themselves female or male. State compulsion to choose one or the other seems precisely the kind of interference the court sought to mitigate.

A mobilizing axiom of the trans rights movement is “Your sex is what’s between your legs; your gender is what’s between your ears.” It is an argument that undergirds the right to change one’s official sex marker – which is read, socially, as a gender marker. Just as transgender activists have fought for pathways to gender marker change from female to male or vice versa, non-binary activists logically query why anyone should be forced into an F or M if there are countless variations on what is between a person’s ears.

After all, gender variant people have existed throughout the world and across time, celebrated in some cultures, denigrated in others. Some societies recognized people who embodied a gender identity beyond the binary, for example, hijra communities in South Asia, two-spirit people among some Native American cultures, waria in Southeast Asia and Fa’afafine in Pacific Islander communities. While the blunt classificatory instruments of colonial rule imposed new bureaucracies of gender assignment, these communities persist and continue to provide alternate ways of thinking about gender that evade binary classification.

At least ten countries do allow for people to opt for an “X” gender marker under at least some circumstances, though progress has often required lengthy court battles. In some cases, courts have only availed “X” gender markers to intersex people – people born with chromosomes, gonads, sex organs, or genitalia that differ from those seen as typical for girls or boys – but have not extended such recognition to non-binary people who are not intersex. Such rulings are anachronistically rooted in the precept that gender markers should be a reflection of biology or body parts.

When it is recognition of gender identity, not intersex status, that is at stake, progress has. In the UK, the Court of Appeal held in March of 2020 that human rights norms did not impose a positive obligation on the state to provide an “X” marker option in passports. The petitioner, Christie Elan-Cane, who is non-gendered and had brought the case to secure a non-binary gender marker on their passport, described the impact as being told to continue to “collude in their own social invisibility.”

British passports list a person’s “sex” but have given a nod to trans people’s gender identity since 2004, when the European Court of Human Rights ruled in Goodwin that transgender people could change their sex markers from female to male or vice versa to reflect their gender identities. But the Elan-Cane ruling means that people who do not identify as female or male will not benefit from such recognition of their identities.

Human Rights Watch submitted an amicus brief in Elan-Cane’s case, pointing out that a 2018 Government Equalities Office survey of over 100,000 LGBT+ people in the UK found that 7 per cent of respondents identified as non-binary. Among transgender respondents, fifty-two per cent were non-binary, and many told survey-takers that they experienced the absence of non-binary gender markers as a harm. As one put it: “Every time I fill in a form, with a few notable exceptions, I am forced to choose a binary gender and title, which is incorrect and upsetting…” If governments are committed to recognizing the rights of transgender citizens and upholding their dignity, they should recognize the identity of those who do not identify as female or male, rather than forcing these citizens to live in discord with their documents.

For many people raised within conventional heteronormative social systems, moving away from rigid gender binaries may feel destabilizing. It may be particularly threatening to those who sit atop social and economic pyramids rooted in patriarchy. When Norrie, a transgender and non-binary person in Australia, applied for an X passport, the Registrar argued that “unacceptable confusion would flow from the acceptance of more than two categories of sex.” This sense of “confusion,” upending patriarchal hierarchies, seems to encapsulate the underlying fear behind states’ reluctance to recognize non-binary (and often, still, transgender) identities.

But evolving interpretations of human rights law suggest that third gender recognition is gaining momentum. With regional courts in Latin America and Europe already affirming that countries must allow citizens to change their gender markers from female to male or vice versa, it seems only a matter of time before an equally strong norm is established around the right to a gender identity that is neither male nor female, or is both. Even some cogs of the global bureaucracy are on board. The International Civil Aviation Organization (ICAO), which sets global regulations for machine readable passports, allows for three sex categories: female, male, or “X” for unspecified.

In the United States, non-binary state identification documents are available in 15 states and the District of Columbia. In February, Congressman Ro Khanna introduced the Gender Inclusive Passport Act, which would require the State Department to issue “X (unspecified)” passports to those who apply for one based on “self-attestation.”

Beyond Gender Markers?

All these developments around gender markers on official documents raise the question: when are gender markers justified at all? In 2016, a group of international experts developed the “Yogyakarta Principles + 10,” a set of principles that explicitly stakes out a progressive expansion of those codified in 2006. Principle 31 states: Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.

The principle proposes that since states should “only include personal information that is relevant, reasonable and necessary as required by the law,” states should “thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licenses, and as part of their legal personality.”

There is precedent for this. Many countries have removed codification of personal characteristics such as race, religion, or marital status from identity documents. The primary purpose of an identity document is to ensure that the person presenting the ID is who they say they are. Race or gender markers do not create any additional clarity when a person’s appearance does not match stereotypes associated with the marker their document bears.

 Before 1976, US passports did not include a sex marker at all, and the International Civil Aviation Authority only developed standardized passport regulations requiring a sex marker in 1980. In 2012, the ICAO discussed the possibility of removing sex markers from passports; while it decided against any immediate change for various logistical reasons, it determined that “the tangible benefits of not requiring travel documents to display the holder’s gender mean there is still a significant opportunity for ICAO in changing the mandatory requirement in the future.”

Some activists argue that the time is now. Australian and Aotearoa/New Zealand intersex organizations and independent advocates came together in March 2017 to issue the Darlington Statement, setting out “the priorities and calls by the intersex human rights movement in our countries.” The statement describes sex and gender classifications as “upheld by structural violence.” While welcoming the choice to obtain “X” identity documents as an interim measure, the statement asserts a larger goal “not to seek new classifications but to end legal classification systems and the hierarchies that lie behind them.”

In June, the Netherlands issued a policy removing gender markers from its national identity documents, although they will remain on birth certificates. While some countries, including Germany, already issued identity documents without a sex or gender marker, the Netherlands appears to be the first country to remove such markers as a conscious step to promote inclusion of transgender and non-binary people. Advocacy efforts to remove gender markers from documents should be cognizant of the potential need for alternative measures to track and prevent gender discrimination; in some European countries without gender markers on identification documents, authorities may look up an individual’s officially recorded gender marker in the civil registry, when deemed necessary. But as the number of countries allowing “X” designations grows, the shift from two to three recognized genders will intensify examination of what official purpose is served by recording, and boxing people into, any gender.

Gender markers sit within a field of contestation in which bureaucratic systems of classification are at odds with the rich tapestry of human experience. The motto of the Transgender Law Center in the US is, compellingly, “Making Authentic Lives Possible.” As long as people are limited to gender markers that may not adequately describe them, such authenticity will be hard to come by.

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