Feature | Gloves Come Off: Round One begins at the Legislature to end prejudice against the transgendered | Cover Story | Salt Lake City | Salt Lake City Weekly

January 23, 2008 News » Cover Story

Feature | Gloves Come Off: Round One begins at the Legislature to end prejudice against the transgendered 

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When Ariana Losco felt her supervisor grab her wrist and push her back into her chair sneering, “You’re not going anywhere,” it churned up dark memories. Memories of when Ariana was David—his memories like a stranger’s, even though they were of her past.

The clench of her supervisor’s grip conjured up the recollection of walking through her high school parking lot after the homecoming football game when a group of schoolmates swarmed her, carrying her off in the dark, promising she would be hanged that night and not live to see the next day.

But that was more than 20 years ago and, after 10 years living as a transgender woman, Losco decided that dealing with the same kind of malice from her boss at the health-care facility where she worked, was just too much. Struggling with hate and fear in her workplace was not what Losco wanted in her new life. Driving home after work, sobbing uncontrollably, was not how she pictured ending her workdays.

Lawyers told Losco they would be happy to fight a discrimination case for her—that is, if there were a law on the books to protect her. Discrimination based on sexual orientation or gender identity is “basically not against the law, simple as that,” explains John Black, one of the attorneys Losco had contacted.

So Losco now waits, pinning her hopes on a proposed bill at the 2008 Utah legislative session to extend workplace protection to members of the lesbian, gay, bisexual and transgender (LGBT) community.

And for members of the “trans” community, passage of this law will require more than winning the tolerance of staunchly conservative Republican legislators. They must also shore up solidarity with their allies in the queer community.

The Chosen
Workplace discrimination has always existed, and workers seeking protection from fear and manipulation on the job has been an evolving civil-rights battle. Over time, and with a growing body of case law, legal protection for employees now includes a number of categories—comprising both biological and chosen traits—including sex, race, age, religion, pregnancy and others.

While these reflections of individual citizens’ identities are protected, state and federal law have left in the lurch a person’s sexual identity and orientation. Critics have argued that such protections have gone too far, opening a Pandora’s box by which subgroups will clamor for special legal privileges.

Longtime gay- and transgender-rights critic Sen. Chris Buttars, R-West Jordan, sees the argument this way: “They pass this law and, pretty soon, some guy with tattoos all over his face is going to sue for discrimination.” The slippery-slope argument presented by Buttars and other critics strikes to the core of the controversy surrounding the lives of members of the LGBT community.

The argument in Utah always comes back to the issue of choice. Should choice be granted protection of the law? Is it the Legislature’s place to validate some citizens’ choices and not others? Anti-gay-rights forces say gender identity and sexual orientation are “choices” and, as such, differ from skin color and age, neither of which can be changed or controlled. Others disagree.

“As a lesbian, I didn’t make a choice,” says Rep. Christine Johnson, D-Salt Lake City, sponsor of the 2008 nondiscrimination bill. “I was chosen.”

Ultimately, the realization of this bill may hang on the idea of choice, which may be the reason that a federal version of Johnson’s bill (which passed the House on Nov. 7, 2007, but awaits Senate approval) left out the transgender community altogether.

It simply may be too much for some heterosexuals (and some gays and lesbians, too) to accept that a person could feel completely detached from the body he or she was born with. This detachment can grow so strong as to lead a person to change what nature initially imposed by employing hormone treatments and a surgeon’s scalpel.

But, then again, the reality of sex and identity is largely misunderstood simply because it’s one of the greatest taboos of public discourse.

For many trans individuals, however, the choice to change even under the surgeon’s blade is not only natural, but the only way to live authentically.

Natural Transsexual
“You are what we call a ‘natural’ transsexual,” explained the Navy physician to young Navy cadet Losco. Still David, and still a man at the time, but very much in search of herself, Losco (who wasn’t using that name yet) had wound up in the Navy at her mother’s request and spent more than seven months in a San Diego boot camp and the Naval School of Health Sciences. Only a week away from completing training with certification as a Navy hospital corpsman, Losco found herself blacking out during runs.

It was then that Navy endocrinologist told Losco her hormone levels were completely out of balance and that she would need testosterone injections to remedy the problem.

“When I asked him what would happen if I got more estrogen, he said, ‘Well, you’ll become more … female,’ ” Losco says. “When I told him I wanted that, he said, ‘You’re going to have to get that on your own; the Navy’s not going to cover that.’” A week later, Losco left the Navy, returned home to Florida, changed her name and started on estrogen hormone therapy. “That’s when I started down the path,” she says.

Once she left the Navy, Losco accepted an identity that was not only written into her biology but also matched up with the way she was raised. The youngest of eight, Losco says she was raised mostly by her five sisters who took care of her while her mother was at work. They treated their young “brother” like another sister.

As soon as Losco started school and until she graduated, the effeminate voice she knew as hers drew mockery from schoolmates. “I like to think of my high school days as legalized public torture,” she recalls, with a nervous chuckle.

Growing up in the small rural town of Kissimee, Fla., a “cow town” as Losco calls it, the treatment she received was endlessly cruel. The usual vignettes of happy high school memories were, for Losco, marred by terror. The night of the homecoming football game, she says, a pack of kids bent on lynching her for being a “fag” carried her off school grounds. She escaped that night, but it didn’t end there.

One day while walking home from school, a car swerved intentionally from the side of the road onto the sidewalk and slammed into Losco from behind, the shove of the bumper throwing her over a neighbor’s hedge. The car peeled off, leaving her in a heap on the ground. While not seriously injured, Losco remains scarred by the memory.

But those were the scars of David—the birth name of the man who desperately wanted to be a woman. In 2007, after having lived a decade as a fully transitioned woman and happily married for the past 15 years, Losco was startled to find her nursing supervisor at the care facility where she worked allegedly treating her with the malice she thought she had left behind decades ago.

As a nursing assistant, Losco had been making a living in Utah, where she had moved to help care for her ailing mother in 2002. When her mother died of kidney cancer, Losco decided to stay and make a career in elder care.

Losco alleges her supervisor began harassing her for her transgenderism, and her new life in Utah became an ordeal. “She would call me a ‘freak’ every time I passed by and once [after I complained], she said, ‘You’re just insecure because you have breasts and a penis.’”

Losco says her supervisor one day pinned her by her wrist in her chair. She told Losco she couldn’t leave the premises. Her shift had ended but the supervisor demanded she take care of another work errand. Losco immediately filed a complaint against the supervisor with her employer, who informed her they would be handling the case “in house.” Management put Losco and her supervisor on different shifts. They also urged Losco “to develop a thick skin.”

Losco was fired from her assistant nursing job on Jan. 10, 2008. A spokesman for her former Tooele County employer would not address Losco’s specific complaints. He says the reason for her termination was not because she is a transgender person, but because she had disparaged the company in a recent Associated Press story.

Lost in Law
One of the most nationally prominent transgender cases happened here in Utah when, in 2005, Krystal Etsitty sued the Utah Transit Authority (UTA) for wrongful termination. Krystal was “Michael” at the time she started driving a bus for UTA in 2002. Etsitty disclosed to her superiors when she was hired that she was undergoing gender transition. Soon after, she was fired.

Etsitty lost her case in Utah’s federal court and also on appeal at the 10th Circuit Court of Appeals in Denver. In a written statement, UTA attorney Jennifer Kohler argued that the 10th Circuit Court upheld the Utah ruling in 2007 because transgender individuals aren’t protected by existing discrimination law and because UTA had valid nondiscriminatory grounds for firing.

“Etsitty sued for discrimination based on not following male stereotypes,” writes Kohler, but “UTA had a legitimate nondiscriminatory reason for firing her: the fear of legal liability from one of its male employees using women’s restrooms while on a UTA route.”

Because Etsitty was hired on as an “extra board” operator, meaning she had no permanent route, UTA couldn’t accommodate the dozens of public restrooms she might have used along the several routes she was assigned. The case pointed out that, even if discrimination had occurred, current law could do nothing about it.

“When employers and society as a whole don’t correct themselves, then the Legislature is important [in] creating the structure that other people won’t self-impose,” says bill sponsor Johnson.

Johnson’s bill would extend existing nondiscrimination law on a state level to individuals based on sexual orientation and sex identity. While workplace discrimination laws cover hiring and firing and everything in between, Johnson wrote a specific mechanism into the bill prohibiting employers from adopting any kind of “quota” system. “We’re not telling [employers] how many members of a diverse community you need to employ; we’re just saying you can’t discriminate.”

She also wrote the bill to allow religious educational institutions such as Catholic schools or Brigham Young University to be exempted. With these conditions in place, Johnson hopes the bill will be received as protecting people who want to be judged only on the quality of their work.

“We know people are getting fired [because of their sexual identity and orientation], and it’s time to do something about it,” Johnson says.

Johnson realizes she’s got her work cut out for her in winning in a Republican-dominated Legislature that has historically fought as a bloc against all gay- and transgender-rights bills. “I think many legislators would be surprised to find this kind of discrimination is going on,” she says.

Johnson hopes to at least start a dialogue this session and imagines her greatest success for 2008 will be to introduce the needs of a community which may seem alien to the largely white, heterosexual male Legislature. “I’m going to thank my colleagues for hearing the bill and then gently move them forward.”

For Buttars, this bill only brings back bad memories. “This whole thing is just Act 2 of affirmative action,” he says.

Despite the non-quota mechanism Johnson has written into the bill, which she believes “deflates” the affirmative-action argument, Buttars remains unconvinced the bill won’t prompt a barrage of lawsuits.

“What do you think will happen when a gay sues for not getting hired? Or if the guy who was twice as qualified [doesn’t get hired], he’ll turn around and sue, as well. There’s no winning,” Buttars says.

Johnson, however, doesn’t see the inclusion of these extra groups for protection as the Pandora’s box that Buttars and others fear. “We already protect some people now for the choices they make, like not discriminating based on religion,” Johnson says.

Buttars says that, while discrimination is wrong, it doesn’t necessarily mean the government has a place in stopping it if that means favoring a subgroup. Laws exist to protect people from religious discrimination, for example, but that doesn’t mean there’s a separate law protecting only Mormons, argues Buttars.

Other critics worry how the law would work in practice.

“The law only understands human action and behavior,” argues Paul Mero of The Sutherland Institute, a conservative think tank, “and now we’re introducing a concept [sexual orientation and identity]. The problem is how do we define sexual orientation and identity under the practice of the law?”

Mero worries that, in practice, if an LGBT employee were fired, and the employer wasn’t aware of his or her sexual orientation, the employee could then use the issue of sex identity or orientation as grounds for a lawsuit.

Even with transgender employees, for example, where the change is physically noticeable, Mero believes the legislation is overly broad.

“Working relationships are very real and very nuanced, and [this bill] is trying to create a civil statute to broadly address these nuances. It’s not sound policy to me,” Mero says.

Buttars agrees and considers the bill to offer unfair privileges to a subgroup. “This nation doesn’t protect subgroups, of any kind,” Buttars says. “Some people not liking other people is an issue, sure. But that doesn’t justify a complete separate protection.”

The transgender community, however, is not necessarily arguing for separate protection or treatment as some new group. Many members seek a different understanding of gender.

Will Carlson, director of Equality Utah, supports Johnson’s bill. He believes existing laws and institutions are stuck to a strictly anatomical understanding and interpretation of gender. “Transition is a very personal matter. How far they go and when they decide to [make the transition] … these are private decisions. What matters is that they clearly present their gender,” Carlson says. “What’s going on in their pants is really irrelevant. “We’re not trying to get the Legislature to condone the morality of the LGBT community. We just want to stop people from getting fired for no other reason than ... being LGBT,” Carlson says.

Still, whether or not legislators will have a chance even to hear the bill remains to be seen. As of press time, the bill has been moved to the conservative Business and Labor Committee, from which it may never escape to the legislative floor.

Long Road Ahead
Rebecca Wilder knows about transgender discrimination. “I was fired as soon as I told my boss that I was going to do [gender transition],” Wilder says. In 2000, she was a terminal manager for a since-bankrupt Salt Lake City trucking company. Looking back, Wilder says she could understand the company’s argument though, at the time, it was a shock for her to be escorted off the premises of the company like a trespasser. The day before, she had been salaried upper-management.

“Behind closed doors, they told me they couldn’t handle all the rumors and attention I would bring to the company being a transsexual,” Wilder says. The machismo of the male-dominated trucking industry was apparently no place for Wilder.

But losing her job was only the beginning.

Wilder soon found she couldn’t find health insurance that would underwrite her as a woman since her birth certificate categorized her as male. A Boise, Idaho, native, Wilder came from one of only three states (along with Ohio and Tennessee) that won’t allow people to change their sex on their birth certificates. Because some of her documents were legally changed to reflect her new sex but others could not be, red flags shot up for health insurers. Wilder has been denied health-care coverage for the past seven years.

On top of that, her ex-wife sued for custody of their two children after Wilder started the transition process. During the two-and-a-half-year-long court battle, Wilder managed to keep custody of her eldest son but lost complete custody of her younger son who was 4 during the trial.

“Without a job, I just couldn’t pay my attorney any longer,” Wilder says, of her lost custody battle. “He’s 11 now, and I haven’t seen him since. I just hope I’ll be able to track him down when he turns 18.” In addition to losing custody, the judge in the case required that Wilder attend one year of psychotherapy.

“I was treated worse than a sex offender,” she says.

Wilder could not keep a steady job for the next five years. “I would go through interviews and get as far as talking salary, but once they ran a background check and found out about my past, suddenly they didn’t have an opening anymore,” she says.

Wilder went from a management job that paid $52,000 a year with a company car and expense account to a $6-per-hour barista position at the Utah Pride Center’s coffee house. Wilder eventually decided the only way she could avoid the rampant discrimination in the trucking industry was to be her own boss.

In 2004, she started her own long-haul freight company, based out of Ogden and running south to Mexico and north to Chicago.

“There’s a big difference when you own your own company. Nobody runs background checks on you so they don’t know. People I work with now still don’t know [I’m transgender]. I would know—they hit on me every day,” Wilder jokes.

She considers herself fully integrated as a female but stays active in supporting trans issues. She was a founding member of Transgender Education and Awareness (TEA) of Utah, a group trying to educate the community about transgenderism.

“When people think of transsexual, they think ‘Jerry Springer,’ ‘drag queen’; they think ‘perversion’—that’s the stereotype we have to overcome, and that’s why we got dropped out of the federal Employment Nondiscrimination Act (ENDA).”

LGB, Hold the T
Wilder worries the progress of Johnson’s bill might be a sad re-enactment of what happened nationally in 2007 when protections for transgender people were dropped from the proposed ENDA.

“I don’t have any respect for the national [ENDA lobby], but we’ve been told that won’t happen here,” Wilder says, with some skepticism. “Rumors are going to fly that if they [gays, lesbians and bisexuals] don’t have us on, then the bill will pass. I think it will start a conflict with the LGB and the T, because that’s what happened nationally,” Wilder says. “We’ll see what happens when the pressure’s on.”

In many ways, transgender issues are a world apart from those of the queer community. The main objective of many trans individuals, after all, is not to stand apart from the majority maintaining their own cultural identity but to fit in and live average lives as the gender they feel they were meant to have.

Todd Hess, a member of the Utah chapter of the Human Rights Committee, a national LGBT advocacy group, has noticed the rift.

“I actually had a [gay] friend say to me recently, ‘I don’t get transgender.’ And I kind of looked at him and said, ‘That’s like when a straight person says, “I don’t get gays.”’ I think it turned a light on for him.”

Rep. Christine Johnson acknowledges some of these fears may be realized in passing her bill. She won’t rule out the possibility of passing the legislation in parts. “This will take baby steps. And when this all comes together, I think, in the end, everyone will be included. When we can accept sexual orientation, we will be able to accept gender identity. Until then, I think people will have to be patient and realize how arduous a process it is to educate people who have no education on these issues.”

While supporters are gearing up for a fight, many remain plagued by doubts.

Wilder supports Johnson’s legislation as vital to providing sanctuary to a community seemingly lost between laws and societal expectations but doubts it will end discrimination. Wilder at one time worked as a cocktail waitress in a California steakhouse, where solid nondiscrimination laws for transgender people exist.

“A co-worker of mine wouldn’t stop telling me that I was going to hell. And so, when I filed a complaint against him and had to admit to my boss I was transgendered, I was fired the next week,” Wilder says. Her boss said the termination was because of anonymous complaints.

“This legislation might get passed—probably not in my lifetime. But, even then, Utah is a right-to-work state, which also means ‘right to fire,’” Wilder says.

In the transgender community, the struggle for acceptance first comes internally, as members acknowledge and draw out the man or woman hidden beneath the ill-fitting anatomy they were born into.

As men and women reborn, their quest for recognition by the law and society may be an operation more dramatic and costly than any surgery imaginable. To rework the taboo and misconceptions of society could mean a cutting away of deeply rooted ignorance, bad jokes and religious hellfire condemnation in trying to piece together a truer community of equals.

Daunting as that task may seem, the pain of living a life in flux is one transgender persons understand well enough on a personal level to know change is something worth fighting for in the whole community.

“In a fairy-tale way. I keep hoping this [legislation] will get passed this year,” Ariana Losco says, “but I know it will take time. All we can do is to keep coming back every session and try and change every ‘nay’ to a ‘yea.’” Dr. Gender Bender: An interview with pioneering sex-change surgeon Marci Bowers To understand the convictions of some transgendered individuals it’s helpful to know what sex reassignment surgery actually involves. Dr. Marci Bowers, a gynecologist and leading reassignment surgeon in Trinidad, Colo., understands the operation well. Bowers performs up to 150 sex-change surgeries a year. She is renowned as one of the most prolific sex change surgeons, a pioneer in the field not only for her expertise but because she is also a transgendered woman herself. She was born Mark Bowers, in 1961. She is the first transgendered surgeon to perform the procedure. Bowers’ focus is on male-to-female surgery, and notes that the price tag for the operation depends on where it’s done. “It can vary,” Bowers says. “In the U.S. there are standards of care that have to be followed—not like in Thailand.” Her jab is aimed at the cheaper procedures available in Asia—inviting to often-desperate shoppers of sex reassignment surgery. Bowers estimates a potentially risky operation in Thailand could run as cheaply as $6,000 while a high-end U.S. clinic might charge around $39,000. Bowers’ Colorado clinic splits the difference at about $18,500. Bowers explains the basics of her male-to-female surgery, or, vaginoplasty is about working with what you’ve got. “You need to create homologous female sex organs from male ones. The penis becomes the clitoris, the penile lining becomes the vagina,” she says. This means an actual inversion of the penis must take place to create a vagina, labia, and a new uteral opening. The female to male procedure, or phalloplasty, is more of a challenge. The urethra must be extended. The labia are united to form an empty scrotum, which can be filled with prosthetic testicles. A prosthetic penis can be constructed or one can be created from the tissue of the clitoris. Bowers considers the procedure less successful as vaginoplasty. “They still really haven’t found a good way to make a phallus, they tend to be micropenises, kind of hung like a Chihuahua,” jokes Bowers, adding “but you know the heart comes first in love. Tools and hardware are very secondary.” Many other secondary procedures are involved with both types of sex reassignment. Most male- to- female patients get breast implants, just as female- to- male patients often get mastectomy breast reductions. Bowers herself often performs a number of cosmetic operations such as tracheal shavings, which make Adam’s apples less pronounced. Bowers’ position from both ends of the scalpel has given her a unique perspective, and while not politically active on transgendered issues, she hopes her experience can help her patients. “I empathize with them [my patients], knowing what they’re going through. I really take it personally if they don’t do well.”

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