Alternatives to Explicit Gender Inclusive Language

In some situations, there are obstacles to including plain trans-inclusive language in a nondiscrimination policy. In this situation, an indirect method can have the same effect without the visibility of explicit language. With a suitable definition, any term can be used to forbid discrimination. Two approaches sometimes used are to define sexual orientation to include gender variance, or to define gender to be more inclusive than just being another word for sex

Defining Gender Identity

Some momentum has gathered around the term "Gender Identity" as an explicit language. Depending upon how "Gender Identity" is defined, this could be inclusive or could apply only to transsexuals. Here are some possible definitions in use or proposed.

Oregon

GENDER IDENTITY. A person's actual or perceived sex, including a person's identity, appearance, expression or behavior, whether or not that identity, appearance, expression or behavior is different from that traditionally associated with the person's sex at birth.

Chicago language for "Gender Identity"

"Gender identity" means the actual or perceived appearance, expression, identity, or behavior, of a person as being male or female, whether or not that appearance, expression, identity or behavior is different from that traditionally associated with the person's designated sex at birth. The actual or perceived appearance, expression, identity, or behavior of a person as being male or female, whether or not that appearance, expression, identity or behavior is different from that traditionally associated with the person's designated birth.

Boston

"Gender identity and expression" is defined as "a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with a person's sex at birth." This definition covers such gender variation as transsexuals in all stages of transition, cross-dressers, drag queen and kings, and the intersexed.

Boulder

"Gender identity" was defined in San Francisco, Pittsburgh and the proposed Boulder ordinance as: "A person's various individual attributes, actual or perceived, that may be in accord with, or sometimes opposed to, one's physical anatomy, chromosomal sex, genitalia, or sex assigned at birth."

Toledo

"'Sexual orientation' means a person's actual or perceived heterosexuality, bisexuality, homosexuality, or gender identity, by orientation or practice." Even though this uses the less inclusive "gender identity" (rather than "gender expression") the same effect is attained with "by orientation or practice."

Philladelphia

A proposal defines Gender Identity as "Self perception, or perception by others, as male or female and shall include a person's appearance, behavior, or physical characteristics, that may be in accord with or opposed to, one's physical anatomy, chromosomal sex or sex assigned at birth."

Columbia (SC?)

Gender identity, which is defined as "one's perceived or actual gender expression or identity that is different from that traditionally associated with one's sex at birth."

Defining Sexual Orientation

One approach (often called the "Minnesota language") is to ensure that "sexual orientation" is protected, and elsewhere to ensure that the definition of "sexual orientation" includes transgender, with language such as the following:

Minnesota

"Sexual orientation means having or being perceived as having an emotional, physical or sexual attachment to another person without regard to the sex of that person, or having or being perceived as having an orientation for such an attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness. Sexual orientation does not include a physical or sexual attachment to children by an adult." [State of Minnesota, TG is the third group]

Houston

"The actual or perceived status of a person with respect to his or her sexuality" [City of Houston]

Maryland

"Having or being perceived as having an identity, expression, or physical characteristics not traditionally associated with one's physical sex or one's biological sex at birth." [Proposed language, defeated in committee.]

Toledo

One particularly good definition was used by the City of Toledo "'Sexual orientation' means a person's actual or perceived heterosexuality, bisexuality, homosexuality, or gender identity, by orientation or practice." Even though this uses the less inclusive "gender identity" (rather than "gender expression") the same effect is attained with "by orientation or practice."

Defining Gender

A similar, but slightly more logical approach, is to protect "gender" (in addition to or instead of "sex") and to define "gender" to be trans-inclusive.

One possible approach (not tested) is to define that "'Gender' means a person's actual or perceived masculinity or femininity." Clarification should indicate that prohibitation of gender discrimination means that the same rules, policies, and benefits that apply to men must apply identically to women, and vice versa.
The state of Califonia has, for certain statues involving hate crimes, defined gender as follows: "'gender' means the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the victim's sex at birth."
The state of Rhode Island protects "gender identity or expression" which it defines as including "a person's actual or perceived gender, as well as a person's gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth."
The city of Dekalb, Illinois, defined gender as follows: "actual or perceived sex, including a person's gender identity, appearance or behavior (even if it) is different from that traditionally associated with the person's sex at birth."
The city of Cambridge, Mass, Human Rights Ordinance (Chapter 2.76, Cambridge Municipal Code) says (Section 2.76.110 ):

"Discrimination on the basis of race, color, sex, age, religious creed, disability, national origin or ancestry, sexual orientation, gender, marital status, family status, military status or source of income is unlawful in the City of Cambridge. "

Section 2.76.030 Definitions: " 'Gender' means the actual or perceived appearance, expression, or identity of a person with respect to masculinity and femininity. "

New York City has proposed a law. Under the current city law, discrimination in employment, housing, and public accommodations is prohibited based on, among other categories, gender, sexual orientation, and disability. Int. No. 754 would provide a detailed definition of gender-based discrimination, saying it includes "discrimination based on an individual's gender identity, self-image, appearance, behavior or expression."
Rochester NY, in a new human rights ordinance, defined "gender" as follows: "Gender includes the biological and social characteristics of gender and gender identity."

"Actual or Perceived ..."

Another approach has been used in the federal Hate Crimes Prevention Act. The proposed language is "the actual or perceived ... sexual orientation, gender, ..." This language is intended to be trans-inclusive, but it could be argued that "gender" protects only genetic women, and "actual or perceived" only applies to "sexual orientation", not to gender. (Certainly we agree that genetic women need protection from hate crimes and other discrimination, as do transpeople!) It is believed that this language is trans-inclusive only if there is supporting official documentation to that effect (such as transcripts of congressional debate stating this intent.)

For more information

For an excellent discussion of legal issues, including many laws on the books and the language used, see Paisley Currah's and Shannon Minter's "Transgender Law" Site.