The law as it applies to us
Phyllis Randolphe Frye
Trial Attorney, USA Rights Worker.
Phyllis Randolphe Frye
is a prominent activist
in the United States and
Executive Director of
Transgender Law and
Employment Policy Inc.
I don't know how active the Boy Scouts are in England - I think it's strong here and I know it's very strong in the United States - I was an Eagle Scout. When I go around the States and speak, I ask all the eagle scouts that are transgendered in the audience to raise their hand. It regularly ranges between 10 and 15 percent of those there are Eagle Scouts or were Eagle Scouts. I find that a very significant showing (laughter). It shows that many of us are achievers and also shows that many of us really did try hard to be guys. I mean we really did try!
I went to college, I went to a military university called Texas A&M University. I went there on four scholarships, I completed a four year curriculum in civil engineering in three and a half years. I then went on to get a masters in mechanical engineering when I was commissioned to be an officer in the United States army. I was run out after about a year because they found out what was in my brain, that some days I might be who I am. There are some people that we still have problems with, because they don't have this problem. You know we don't really have a hormone problem, people that have the hormone problem are the bigots who suffer from acute testosterone poisoning. I was fired from engineering after I was licensed in three states and practised for many years; then it was because it was just before my transition and it was a very macho industry back in the 70's. It's still macho, but not nearly as bad - they don't suffer from ATP (Acute Testosterone Poisoning) as they did then. But for about 10 years I was severely under-employed or unemployed. Just to give you an idea of how much being Phyllis Randolph Frye has cost me just in dollars and cents. I am a successful trial attorney - I make good money - but during that period of time, my spouse and I compute that what I would have made, if you figure in inflation and you figure in cost of living and you figure in merit raises, things of that sort, and subtract out the meagre amount that I did make from either unemployment or severe underemployment - it turns out that Phyllis Randolph Frye cost between 400,000 and 600,000 dollars in lost income over my life. You could compute that as pounds - that is about £250,000 to £400,000. I am here to tell you that it was a small price for the fact that for 18 years I have been free. I am totally, completely, 100 percent free and that is a very very cheap price.
I met - before my transition - a very fine person and who is my best friend and is my spouse now of 21 years. Tricia raise your hand. We have been together, married legally for 21 years. She knew who I might be before we got married and after we got married I tried that one last time. I grew a beard! I did the same thing that Michael Jackson is probably doing right now, before she does her thing. But anyway it's been an interesting life, I wouldn't trade it for anything and I am here to tell you that you only get one life. You only get one life! It's very interesting what I have heard this week-end. And I commend the professionals who are here trying to help us out, but I haven't heard anything about really making change. We can have petitions and we have doctors and we have lecturers, but until you change the law, until you change the political process, until you influence legislation, and I am going to do what the speech therapists told me I should not do - ladies and gentlemen you ain't got shit! You don't have a life until you have legal freedom. And everyone who has come to me this weekend has had "You Texans over in the United States have got the Bill Rights, you've got this, you've got that." Well it's true we do, but you have got other things we don't have.
The point is that you have an elected representative government. You have just as much freedom as I do and as I did to influence and change the law. I changed the law, I actually changed the law. There was a law in Houston, Texas many many years ago that made it illegal just to cross-dress. And you could be arrested just for cross-dressing. It took me four years of lobbying and walking the streets and working for people running for elective office, free, voluntary. I got the law changed through legislative action. We have another bill running through our State legislature right now - which I hope I have time to tell you about later on - but it will probably take another 2 years, it may take another couple of sessions. But it's going to be changed. And right now there is a federal law going on and the gays and lesbians and bisexuals in the United States are very very well organised and fighting. And they have left us out of this federal law so we are organising and fighting to get back in. But unless you make legal change nothing is going to happen.
I will point your attention to our handout, we will go through it very quickly. I want to invite you to go home and mark your calendars, June 14 - June 18, that is when the Fourth Annual International Conference on Transgender Unemployment Policy will be held in Houston, Texas. There is going to be a whole lot going on and even though it's purposely designed for legal discussion, we invite the non-lawyers to come. It's really been interesting because during our conferences which were set up for lawyers more than two thirds to three quarters attending have always been non-lawyers. It's very reasonable, because they are the ones who are taking the grief. They are the ones who are being put upon. They are ones that are using their jobs, they are the ones who have an insurance problem, they are the ones that are being run out of their houses, they are the ones that are having child support problems, they are the ones who are being divorced, they are the ones going ??through child custody battles. They are going through all these legal problems and they know what the problems are.
We have got these lawyers who are the technicians, the lawyers need to know what the problems are. Between the lawyers, who are in the minority of attendees and the transgender non-lawyers, who are in the majority we came with: Progressive Strategies for Change. That's what the transgender law conference is about, you will hear it referred to by many names. Our official name is International Conference on Transgender Unemployment Policy. We added employment policy because if you can keep your job, if you can get a job, if you got some kind of income coming in, which helps with your self-esteem, you can usually suffer through the rest of it. So employment is very very important. Almost everybody I have talked to, even in England, who says "Well I can't make the transition because I may lose my job." Well you know it's a very important thing, so we need to work on that. We just finished Transgen '94, and fixing to start Transgen '95. And Transgen '95 will focus on jobs, health, rights and documents. All the things that affect you. We put "international" because we want to be international and we try to be international. And I have conversed with many of the people in this room and others in China and Australia and others. We still haven't had the international attendance. So here I am. I figure if you cannot cross the Atlantic, I better cross it myself. So here I am to invite you to come and I have already talked to Richard Green and he is thinking that he might come and make a presentation. Stephen Whittle has already said that he is coming to make presentations. And we are really going to concentrate on having an international flavour this year, which I am very very excited about.
The front page of the handout tells you more about conferences. It also tells you about our proceedings that are for sale. Now number 3 talks about our proceedings and a cost of $65, which is about £42 or £43. To ship it overseas I have to add $10 to it. That is the slow boat that takes a month and a half to get here. That's about £3.50. If you want it shipped airmail, it's a very big and large book, it takes about $30, which is about £15. So if you want to order that way it's fine. I brought a suitcase full of them over here. And I am selling them for only £40, which is only a couple of pounds less than it cost, but you don't have to pay for the shipping and so it's about a 30% saving. I think there are ten left in the bookstore for you if you want them. You will also notice on the copyright, and many of you have read some of my articles that are taken directly from the proceedings of Tapestry so if you are a non-profit transgender or cross-gender organisation - and you want to use some of the legal articles that are in our proceedings, we waive our copyright to you. So you have got ready-made articles that are of great importance to put into your newsletters, if you will just buy a copy of our proceedings. Two weeks ago, we went through a review of the previous law conference and we had a workshop to co-ordinate draft legal documents. It seems to me that there are still a couple of words that we have problems with in the States. I am not attacking and I certainly don't want to denigrate my host, but we have a real problem with the term "gender dysphoria." A real problem with that word, because it implies that we are sick, and I ain't sick! And I don't have a mental problem, but it is a problem. It is a denigration! We are going to have to come up with a better word than gender dysphoria. I am not putting down the doctors, nor am I here to attack the doctors. But gender dysphoria was coined by the people who are treating us.
We need to come up with our own words. We need to come up with our own definition. Other terms that we have problems with are male to female and female to male. If you think about it, here is where your sex is (pointed to her head). Here is where your sex is. I am a female to female transsexual. I finally discovered after many years that I am female up here and all I am doing is bringing the rest in line. So I am a female to female transsexual. What of the guys, are they females to males? No! They are males. They are just bringing the rest into conformity. So they are actually male to males.
We need to really start defining ourselves, seeing who we are and what we are about. We need to start finding our own words. We covered saving your job, and making yourself more valuable. There was a documents workshop on needs and expectations and issues of a new identity. We had talks on how to transition in the job, if you've got an employer. In Proceedings No. 2 is a booklet which gives you tips on how to transition on the job and educate your co-workers. Also in this proceedings, is a statistical study done in Vancouver, British Columbia done with transgendered people. It included employers and social workers. There are a lot of statistics in it, but as a trial attorney, the thing I am interested in is how I've got to the state that whenever I am fighting a bigoted employer, who says "I can't hire this person" or "I can't keep this transgendered person on the job because it will affect the co-workers or it will affect my clients." The trend in the study is that if you as a transgendered person have good self-esteem, if you as a transgendered person present yourself well, if you as a transgendered person are proud of who you are, your employers don't have a problem with us. You know who really had the problem with us, who gave us the lowest rating in that state? The Social Workers! Why? Again, I am not blaming the social workers, but what part of our population do they deal with? They deal with the part of our population that do have problems. It's not their fault. They don't get the opportunity to meet the vast majority of us.
I was talking to Dr. Maxwell who heads up one of the clinics in Houston and he said "Where are you coming up with these facts? Where are you coming up with these people? I have been doing this for fifteen years and I have had umpteen-hundred people that I have treated in clinical practice and they don't have high self-esteem and they don't have this and that." And I said "Of course Dr. Maxwell, it's no fault of yours, but you are dealing with people who are coming to you because they have got problems. I am out all over the country speaking at conferences that have 300 or 400 people. I receive letters, and go all over the place. I meet people that are happy and they are functional. They are having a good time. They don't have "Gender Dysphoria"!
We also looked at health and rights. The international bill of rights. I want to give you a little clip on the international bill of rights, which is in here. The transgender law conference is going to apply to be included in the United States preamble to the International Bill of Rights. I am going to read it slowly because this applies to you and to your self image. "All human beings carry within themselves an ever unfolding idea of who they are and what they are capable of achieving. The individual sense of self is not determined by chromosomal sex, nor genitalia, nor assigned birth sex, nor initial gender role. Thus the individual's identity and capabilities cannot be circumscribed by what society deems to be masculine or feminine. It is fundamental that individuals have the right to define and to re-define, as their lives unfold, their own gender identity, without regard to chromosomal sex, genitalia, assigned birth sex and initial gender role." And we go on to the "right of free expression, the right to control and change your body, the right to competent medical and professional medical care, the right to freedom from psychiatric diagnosis." In other words if you are not sick, you don't have to go through that. If you do have a mental or psychological problem please do. We have some wonderful professionals that can help you. But if you don't have a psychological problem, then you should be free from treatment. The right to sexual expression, the right for committed loving relationships, to enter into the marital contract, the right to conceive, adopt children, nurture, have custody of children and exercise parental rights. Just two weeks ago we amended this to add the right to have employment and earn a livelihood.
We also opposed health law standards. A lot of people think that we are attacking society. In some ways we are, in some ways we are not, but I am not here to attack. I am merely here to explain. Many people say that there is a call for surgery on demand. No, no, no! I will spell it for you, NO! No! We are not going for surgery on demand. In fact what we have said in here, that a surgeon, before they work with a client, must have a reasonable belief that surgery will not aggravate a pre-existing health condition. And they must have a reasonable determination that the patient has been under hormonal sex-reassignment surgery therapy for at least one year. If that surgeon's reasonable belief says that this person is needing psychological counselling, they get psychological counselling. But if a surgeon sees that the person clearly has their act together, knows what they are doing, has availed themselves of workshops like this, has availed themselves of some of the wonderful publications that The Gender Trust are putting out, has availed themselves of a lot of the good self help that has come along, maybe even has worked on telephone workshops, then they should not have to go through that 'gatekeeper,' that's all we are saying.
We are not asking for surgery on demand. All we are saying is that if you've got yourself together you may not need the gatekeeper. You will see we have an extensive case law history, most of our case law comes from the United States, although we do have European case law history. Your becoming a member of the EC is going to help you a lot. I really think that the gender rights organisation within the EC is going to do more for us legally than anything else. I want to take two of the things that the Law Conference is pushing. The Law Conference is not pushing for non-surgical change. The Law Conference is pushing for people to have the option, people have the knowledge, people have the understanding, that you can live fully as a female without going through surgery.
I am a non-surgical transsexual. I transitioned 18 years ago, I took my time going through it; there is a lot you have to learn about being a female. We have to go through our teenage years again. We have to learn how to function, we have to learn all these things. I took my time with that and came to the conclusion that surgery was a) extensive and b) unnecessary. It is dangerous, one of our sisters died just last year in Houston. It's dangerous, any surgery is dangerous. I am not here to say don't have surgery, if that's not what you want. Because I will hold your hand and take you to the surgery and help you out. But if you don't need surgery, you don't have to have it. I am totally female. I am not my genitals. I am a human being and I am fully female.
I was being opposed about a year ago, doing a big civil suit, where I was an expert witness - the attorney on the other side had ATP, and he was really suffering from the fact that I was non-surgical. I think it was because he had tried to cruise me. You know how heterosexuals are - they wear a wedding ring, I wear a wedding ring. It's OK to cruise, but if you are a homosexual or you are transsexual, Oh my goodness, tut tut, shame on you! But anyway he tried to cruise me but when he found out I was not surgical all I could see in eyes was that he withdrew. Number one, because he was relating to me as my genitals. He said "Ah, Ah. . ." and he starts talking about my genitals. I said "I don't have a penis" and he said "But you said you haven't had surgery." And I don't have surgery. "Well then you have a penis." "No I don't have a penis." "Well what do you have?" And I said "I have clitoral hypertrophy, it's very simple."
We have a lot to learn from the guys. The surgeon here, Dr. Jorris Hage, who talked about the phalloplasty, talked about the difficulties and expense of the numerous surgeries. A lot of the guys are opting to wait until it becomes better and faster and less expensive. And yet they are fully men. And I have no trouble taking them to the court house, fully men, and introducing them to the judge and getting their paper work done. I thought, well if I can take them through as fully men, why can't I take us through as fully women? And actually the judge said "It makes sense to me." So the non-operative option - its' an option! And again I am not fussing with a single doctor here, I think that they are good people, I think their heart is in the right place. Subjectively, each doctor, each psychologist I think does us a lot of good. But objectively the profession is not helping us or treating us as individuals. They could be out there telling Society "Hey folks you are the one that has the problem!." I also get money from the transgender community because I am a practitioner, I am a lawyer. Thirteen percent of my income last year came from the transgender community, taking them through the courts, fighting their fights. Half of my time is spent on unpaid cases doing exactly what I am doing right now. Even though I am helping them subjectively on an individual basis, I am out there objectively trying to change laws and trying to change Society. The medical profession needs to do this too. We are attacking the American Psychiatric Association. They've put us in the DSM. We want out and I think we are part way out, but we are not all the way out! There is nothing wrong with us mentally, just because we cross-dress. We want out of the DSM! That's one of the things we are about.
So many doctors in the States have been requiring a couple to divorce, who are loving and together, want to stay married, who understand what is going on, yet the spouse who is not going to have surgery is willing to sign any waiver, and understands that they are going to be living with a female to male, understands that they are going to be in a lesbian relationship from then on. And the doctors were requiring divorce until we got on the war path and said "No." It is illegal in the United States for two people of the same sex to get married. But it is not illegal for two people of the opposite sex, who have a legal marriage to remain married even though after surgery they are the same sex. That is a very fine legal distinction and I encourage all of you if you are married to keep your marriage. Tell the doctor that says you have to be divorced that he is guilty of practising the law without a licence.
We need to work with the lesbian and gay community. I don't how well organised they are over here. But they are very well organised in the States. And they are organising internationally. They have more numbers than we do. I understand that sexual orientation has nothing to do with gender identification. But the people who suffer from ATP out there, put us together, and they are constantly calling gays, lesbians and cross-dressers effeminate. They are constantly calling us gay. We need to embrace the lesbian and gay community. We need to work with the lesbian and gay community, because the only way we are going to get legal change is if we are working with them. We ain't going to do it by ourselves. We don't have the numbers, it's going to take another generation of awareness before we are going to make these changes by ourselves. We have to. The International Lesbian Gay Alliance is going to be meeting in Helsinki, Finland, in December over New Year. Helsinki really isn't that far from here and I realise that you may not be able to come to the States for our law conference but that's still not a good excuse. The work that ILGA has been done during the Stonewall celebrations. ILGA raised bloody hell about the fact the transgender folk were not on that March. As a result ILG is putting on a transgender pride conference. If we are there in numbers they are open to us and welcoming to us. When they really see who we are it will be a unified political movement. The last stage deals with the drag community. Tell your sisters who are in the drag community, that if they ever get legal rights because of their sexual orientation, they will still be discriminated against because they cross-dress. Why? Most people are heterosexual. Heterosexuality is, I think, legal and you are still being discriminated against because you cross-dress. A homosexual person who once they have obtained legal status as a homosexual person, will still be discriminated against on the basis that they are cross-dressing.
One last note. Any of you who watch Country and Western cowboy movies - we've got a lot of people in the United States who don't own cows, they don't have horses, they don't live on a farm, they don't live on a ranch, but they wear Country and Western attire. They wear boots, they wear that style of shirts. They wear hats and they are cowboys. They've even got bars that have Country and Western themes, they've got County and Western literature. They've got Country and Western events and music - you think about them, they do everything that we do: they cross dress. Yet we are given the pejorative terms of 'transvestite' - I say those people are "trans-West-ites."
Buy the book!
Frye, P.R., (1994), The law as it applies to us, GENDYS '94, The Third International Gender Dysphoria Conference, Manchester England. London: Gendys Conferences.
Web page copyright GENDYS Network. Text copyright of the author. Last amended 08.04.98