Rethinking Sex-Classification Policies and Race-Sex Discrimination in My Work and Workplace

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by Heath Fogg-Davis:

I am a scholar-activist and consultant whose work in classrooms, boardrooms, community centers and media seeks to alleviate discrimination and inequality. As a professor at Temple University, I teach courses on anti-discrimination law, democratic political theory, and the politics of race, gender, gender identity and sexuality. As a scholar, my research and publications probe the complex relationship between individual and collective identity in contexts such as family formation and adoption, public accommodations, employment, education, criminal punishment, and the urban public sphere. As an activist, I collaborate with and advocate for marginalized communities including transgender and gender non-conforming peoples, women of color, and LGBQ people. As a consultant, I work with businesses, non-profit organizations, athletic clubs, and schools to help them imagine practical and innovative administrative policy adjustments that not only satisfy current anti-discrimination law, but also further their specific organizational goals.


My Work, My Workplace

I launched my consulting business in the spring of 2014. And my reasons for branching out of academia in this way were both personal and political. Six years ago, I began my gender transition from female to male as a tenured professor at a large public-private university in a city governed by a recently passed gender identity non-discrimination ordinance. At the time, the university had not added the category of “gender identity” to its non-discrimination statement, and there were no resources in place to assist me with the administrative things I needed such as my name and gender marker changes on official university records, restroom accommodation during the period of early transition when my appearance was very androgynous, notifying my colleagues both in my department and on the various university-wide committees on which I served. In the absence of any policies, I had to rely on a number of individuals in positions of institutional power to assist me, including in-person scheduled meetings with my dean, a member of the university’s legal counsel, and the director of human resources. These were difficult phone calls and meetings for me, which is not to say that they would be for every other person in my situation. The meetings went well, and all of the administrators with whom I met treated me with kindness and respect, even as I sometimes detected outward signs of their own discomfort.  The lack of administrative policy concerning transgender rights in our workplace put all of us in a tough spot.


When good administrative policies are in place they alleviate pressure both from employees and employers by stipulating a plan of action that is not based upon a particular person’s circumstances, but instead upon how the organization can best function in light of such an event, and stay true to its organizational goals. This is not to say that the details of a person’s specific gender transition are unimportant or irrelevant to the crafting and implementation of administrative policies. For example, race is always an intersecting identity vector in our lives, and the fact that I was transitioning from black female embodiment to black male embodiment in my university setting can never be edited out of the trajectory of my professional career, and my interpersonal experiences along the way. But that does not mean that race ought to be explicitly included in gender identity policies, or that the racial discrimination policies that a university or other organization already has in place must always be invoked when someone like me is transitioning on the job.


On the contrary, one powerful way to address intersectional identity discrimination is to minimize the formal opportunities for individuals within an organization to use their subjective intersectional race-sex-class judgments to negatively impact the lives of other people within the organization. I make this argument in my recently published article, Sex-Classification Policies and Transgender Discrimination: An Intersectional Critique, and in a book that I am currently writing that examines sex-classification policies in a variety of venues, including: personal identification documents, public restrooms and locker rooms, education, and criminal detention and incarceration. I call for us to rethink, and in many cases dismantle, the numerous sex-classification policies that structure our interactions with others in our workplaces, our schools, and our public accommodations, more generally. As a society, we are now beginning to discuss gender intelligibility, whether someone is perceived as male or female, as a form of discrimination that can and does occur even when women are not being disadvantaged in relationship to men, and men are not being disadvantaged in relationship to women. But we have not taken the further step of asking ourselves why we need sex-segregated restrooms or sex-stamped personal identification documents in the first place.  In most cases our adherence to sex-classification policies in a vestige of assumed, rather than true, or even rational necessity.


When I talk with clients about how to make their organizations more trans friendly, the first thing I ask them to do is to take stock of their formal and informal existing sex-classification policies—any and everything, including restrooms, bureaucratic forms, and dress codes. Sex-classification policies do not, of course, require or explicitly sanction transgender discrimination, which is mostly based on the visual perception that someone has stretched binary gender norms “too far.” Just because the person managing a Starbucks with separate male and female single-stall restrooms, or charged with processing sex-marked job or college application form has the administrative power to inspect and evaluate gender in discriminatory ways does not mean that she or he will do so consistently, or ever. The problem is that sex-classification policies prompt and permit this kind of gender policing. And whenever gender policing occurs it always involves intersectional racial and class perception, factors that are also often not rationally related to legitimate business, employment, or educational goals such as privacy, security, and safety. We can, for example, design and construct restroom facilities differently so that these goals are met without subjecting individuals to formal and informal gender policing. It is the arbitrariness of this policing that is the hallmark of gender identity discrimination. One never knows when one will be subjected to de jure or de facto intersectional gender policing. But one knows that such policing is administratively possible. The signs and boxes tell us so.


Sometimes it makes sense to get rid of the signs and boxes altogether. Sometimes it makes sense to change the signs and boxes, by for instance, adding more and/or different gender identity boxes. It all depends on clarifying the particular goals that an organization is trying to achieve, and then thinking about alternative ways of meeting those goals so that formal and informal opportunities for intersectional gender policing are minimized. I help organizations, big and small, think through these connections.


If you are part of, or know of, an organization that could use this sort of pragmatic creative thinking, please contact Heath Fogg Davis.