Discrimination Against Gender Non-Conforming Individuals: Academic Sources And Debates

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Durable solutions for discrimination may come with education, and the continued search for knowledge and understanding. As Florence Ashley underscores in her recent paper in the University of Toronto Law Journal, despite lawmakers’ best intentions, laws are no magic bullets. They are constrained by sets of principles that create inherent limits for them. Discriminations against gender non-conforming individuals, very often, differ from the paradigmatic cases of overt and intentional infliction of differential treatment that one tends to envisage. Often, they are very subtle and effected through contextualized actions that one might personally not consider as having discriminatory effects.

This article shares scientific data on topics related to discriminations faced by gender non-conforming individuals. Our hope is these can fuel reflection and give a greater understanding of the issues faced by gender non-conforming individuals. Here, we provide a multiplicity of scientific sources, as part of a guided reflection moving through several issues affecting gender non-conforming individuals. This allows us to illustrate emerging ideas about gender identity, the multiplicity of problems that it brings to the forefront as well as consider proposed methods of support. It also allows us to stress the importance of further research to deepen our understanding of gender identity and ultimately, how to legislate around these issues.

A first area that should interest us is the number of gender non-conforming people in the general population. Having various measures to determine how gender identity is expressed on the oft-referred gender spectrum provides useful insight into how neatly gender can be characterized and ultimately how institutional paradigms should be changed. It is important to note here, that “gender non-conforming” and “transgender” are not synonymous. A transgender person is someone who identifies as the sex opposite the one they were assigned at birth. Someone who is “gender non-conforming” is simply someone who identifies as not falling neatly within the traditional binary gender categories that are “man” and “woman”. Taking this difference into account, it is interesting to note that, according to the Williams Institute at the University of California Los Angeles, while the transgender population is currently estimated at 0.58 percent of the population in the United States, the percentage of the population who identifies to some degree of gender non-conforming is much higher – as high as 27% among teenagers. The Williams Institute states that there is a likelihood that the number of people identifying as gender non-conforming will likely increase as the subject becomes less taboo and more people start using the label. This would explain why more young people identify as gender non-conforming. This data has limitations, however. This number is based on a self-categorization of respondents in different categories ranging from “very feminine” to “very masculine”. This gives us an idea of how many people depart from to various extents from standards of gender expression, which is different from gender identity, which is the intrinsic sense that one is a man, a woman, both, or neither. Hence this data does not indicate how many people live with gender dysphoria and might therefore be transgender.

1. Esther Meerwijk and Jae M Sevelius, “Transgender Population Size in the United States: a Meta-Regression of Population-Based Probability Samples” (2017) 107:2 Am J Public Health e1, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5227946/>.
2. Bianca DM Wilson et al, Characteristics and Mental Health of Gender Nonconforming Adolescents in California: Findings from the 2015-2016 California Interview Survey, (Los Angeles: The Williams Institute and UCLA Center for Health Policy Research, 2017).
3. MB Deutsch, “Making It Count: Improving Estimates of the Size of Transgender and Gender Nonconforming Populations” (2016) 3:3 LGBT Health 181 online: <https://www.ncbi.nlm.nih.gov/pubmed/27135657>.
4. Christina Richards et al, “Non-binary or genderqueer genders” (2016) 28:1 Int Rev Psychiatry 95, online: <https://www.tandfonline.com/doi/pdf/10.3109/09540261.2015.1106446?needAccess=true>.
5. Chassitty N Fiani and Heather J Han, “Navigating identity: Experiences of binary and non-binary transgender and gender non-conforming (TGNC) adults” (2018) Int J Transgenderism, online: <https://www-tandfonline-com/doi/full/10.1080/15532739.2018.1426074>.
6. Andrew R Flores et al, “How Many Adults Identify as Transgender in the United States?” (Los Angeles: The Williams Institute, 2016), online: <http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf>.

Discrimination against gender non-conforming people has been documented in various fields, notably, in employment, healthcare, or education. As stated above, the problem with studying discrimination within various social arenas is that discrimination, rather than being overt, is often camouflaged through innocuous acts. There would be high value if more research were done in these areas, allowing for action to be taken at a grassroots level.

7. Daphna Stroumsa, “The State of Transgender Health Care: Policy, Law, and Medical Frameworks” (2014) 104:3 Am J Public Health e31, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953767/>.
8. Albert Joseph et al, “Gender identity and the management of the transgender patient: a guide for non-specialists” (2017) 110:4 J R Soc Med 144, online: <https://www.ncbi.nlm.nih.gov/pubmed/28382847>.
9. Gilbert Gonzales and Carrie Henning-Smith, “Barriers to Care Among Transgender and Gender Nonconforming Adults” (2017) 95:4 Milbank Q 726, online: <https://www.ncbi.nlm.nih.gov/pubmed/29226450>.
10. G Nicole Rider et al.,“Health and Care Utilization of Transgender and Gender Nonconforming Youth: A Population-Based Study” (2018) 141:3 Pediatrics 1 <http://pediatrics.aappublications.org/content/pediatrics/early/2018/02/01/peds.2017-1683.full.pdf>.
11. Jaclyn M White Hughto, Sari L Reisner and John E Pachankis, “Transgender Stigma and Health: A Critical Review of Stigma Determinants, Mechanisms, and Interventions” (2015) 147 Soc Sci Med 222, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4689648/>.
12. Anne Boland, “God of the hinge: treating LGBTQIA patients” (2017) 62:5 J Analytical Psychology 688.
13. Skylar Davidson and Jamie Halsall, “Gender inequality: Nonbinary transgender people in the workplace” (2016) 2:1 Cogent Soc Sci, online: <https://www-tandfonline-com/doi/full/10.1080/23311886.2016.1236511>.

There has been much debate in academia in recent years, first, about the role of “unconscious” or “implicit” bias in the treatment of certain marginalized groups by state institutions and their agents. Originally used to attempt determining the existence of racial bias in the treatment of African-Americans by the criminal justice system, the implicit-association test has been used more recently to consider the existence of gender bias and accessorily, bias towards gender non-conforming. Many academics have criticized this method as too imprecise and possibly dangerous, since it is akin “attempting to read into a person’s mind”. With the standard in criminal trials being that of proof beyond a reasonable doubt, much skepticism has been expressed with regards to the test’s capacity to prove the existence of an accused’s guilty mind. Moreover, in these cases, due process naturally limits the usefulness of these tests. While, they might show the existence of bias in a person, this does not mean the alleged bias was the main impetus behind an action. However, in civil cases, notably, discrimination cases, where the burden of proof is on a balance of probabilities (meaning that the plaintiff’s case must be more probable than improbable), the test could be used as one element out of many to bolster one’s case. The Courts have already had to tackle the question of bias from a presiding judge. Nevertheless, Implicit Association tests, to our knowledge, have never been used to rule on a case as of yet in Canada.

14. Kelly Capatosto et al., State of the Science: Implicit Bias Review (Columbus: Kirwan Institute for the Study of Race and Ethnicity, 2017).
15. John T Jost et al., “The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore” (2009) 29 R Organ Behav 39, online: <https://www.sciencedirect.com/science/article/pii/S0191308509000239>.
16. Brian A Nosek, Carlee Beth Hawkins and Rebecca S Frazier, “Implicit social cognition: from measures to mechanisms” (2011) 15:4 Trends Cogn Sci 152, online: <https://www.sciencedirect.com/science/article/pii/S1364661311000167>.
17. FL Oswald et al., “Predicting Ethnic and Racial Discrimination: A Meta-Analysis of IAT Criterion Studies” (2013) 105 J Personality & Soc Psych 171.
18. Gregory Mitchell & Philip E. Tetlock, “Antidiscrimination Law and the Perils of Mindreading” (2006) 67 Ohio State LJ 1023.
19. Miguel C Brendl, Arthur B Marksman & Claude Messmer, How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test, (2001) 81 J Personality & Soc Psych 760.

Finally, support for transgender people is vital. Suicide attempts and very high levels of social anxiety are known to be prevalent among gender non-conforming individuals. Support from one’s family and entourage can therefore be of great help. However, change on the societal level seems to be required. Many studies have been conducted on the subject. Nevertheless, more research can be done into the specific factors that lead to the diminution. Additionally, although so-called gender affirmation therapies, including reassignment surgeries and hormonal treatments are generally associated with mental health benefits and diminution of dysphoria, suicide rates for transgender individuals remain very high, which indicates that other factors have a major effect on their overall well-being. More research needs to be done to identify these factors.

20. Cecilia Dhejne et al, “Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden” (2011) 6:2 PLoS One 1, online:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5841333/.
21. Riittakerttu Kaltiala-Heino et al, “Gender dysphoria in adolescence: current perspectives” (2018) 9 Adolesc Health med Ther 31, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5841333/>.
22. Caitlin Wolford-Clevenger et al, “Suicide Risk Among Transgender People: A Prevalent Problem in Critical Need of Empirical and Theoretical Research” (2017) 4:3 Violence Gend 69, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5649411/>.
23. Calvin Louis Gilbert, “Expanding Hearts and Minds: The Impact of Transgender and Gender Non-Conforming Educational Interventions on Nurse Practitioner Students’ Knowledge and Comfort” (2016) College of Nursing and Health sciences Master Project Publications, Paper 5, online: <https://scholarworks.uvm.edu/cgi/viewcontent.cgi?article=1004&context=cnhsmp>.
24. Virginia P Quinn et al, “Cohort profile: Study of Transition, Outcomes and Gender (STRONG) to assess health status of transgender people” (2017) 7:12 BMJ Open, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5770907/>.
25. Stephanie L Brennan, “Relationship among gender-related stress, resilience factors, and mental health in a Midwestern U.S. transgender and gender-nonconforming population” (2017) 18:4 Int J Transgenderism 433, online: <https://www.tandfonline.com/doi/abs/10.1080/15532739.2017.1365034>.
26. AA Owen-Smith et al, “Association Between Gender Confirmation Treatments and Perceived Gender Congruence, Body Image Satisfaction, and Mental Health in a Cohort of Transgender Individuals” (2018) J Sex Med 591, online: <http://www.jsm.jsexmed.org/article/S1743-6095(18)30058-4/fulltext>.
27. Tiffany R Glynn et al. “The role of gender affirmation in psychological well-being among transgender women” (2016) 3:3 Psychology of Sexual Orientation and Gender Diversity 336, online: <http://psycnet.apa.org/buy/2016-21290-001>.
28. Megan C Stanton, Samira Ali and Sambuddha Chaudhuri, “Individual, social and community-level predictors of wellbeing in a US sample of transgender and gender non-conforming individuals” (2017) 19:1 Cult Health Sex 32.
29. Ashley Austin and Revital Goodman, “The Impact of Social Connectedness and Internalized Transphobic Stigma on Self-Esteem Among Transgender and Gender Non-Conforming Adults” (2017) 64:6 J Homosexuality 825, online: <https://www-tandfonline-com/doi/full/10.1080/00918369.2016.1236587>.
30. Amaya Perez-Brumer et al, “Individual- and Structural-Level Risk Factors for Suicide Attempts Among Transgender Adults” (2015) 41:3 Behav Med 164.
31. Arnold H Grossman, Anthony R D’augelli and John A Frank, “Aspects of Psychological Resilience among Transgender Youth” (2011) 8 J LGBT Youth 103.
32. Jacob C Warren, K Bryant Smalley and K Nikki Barefoot, “Psychological well-being among transgender and genderqueer individuals” (2016) 17:3-4 Int J Transgenderism 114.
33. Stephanie L Budge, H Kinton Rossman and Kimberly AS Howard, “Coping and Psychological Distress Among Genderqueer Individuals: The Moderating Effect of Social Support” (2014) 8:1 J LGBT Issues Counseling 95.
34. Nessa Millet, Julia Longworth and Jon Arcelus,“Prevalence of anxiety symptoms and disorders in the transgender population: A systematic review of the literature” 18:1 Int J Transgenderism 27, online < https://www-tandfonline-com/doi/full/10.1080/15532739.2016.1258353?src=recsys>.
35. Jake Pyne ““Parenting Is Not a Job … It’s a Relationship”: Recognition and Relational Knowledge Among Parents of Gender Non-conforming Children” (2016) 27:1 J Progressive Human Services 21, online: < https://www-tandfonline-com/doi/full/10.1080/10428232.2016.1108139>.
36. Ruari-Santiago McBride and Dirk Schubotz, “Living a fairy tale: the educational experiences of transgender and gender non-conforming youth in Northern Ireland” (2017) 23:3 Child Care in Practice 292.
37. Jacqueline Ullman, “Teacher positivity towards gender diversity: exploring relationships and school outcomes for transgender and gender-diverse students” (2017) 17:3 Sex Ed 276.
38. Emily A Greytak, Joseph G Kosciw and Madelyn J Boesen, “Putting the “T” in “Resource”: The Benefits of LGBT-Related School Resources for Transgender Youth” (2013) 10:1-2 J LGBT Youth 45, online: < https://www-tandfonline-com/doi/full/10.1080/19361653.2012.718522?src=recsys>.
39. Rhonda J Factor and Esther D Rothblum, “A Study of Transgender Adults and Their Non-Transgender Siblings on Demographic Characteristics, Social Support, and Experiences of Violence” (2008) 3:3 J LGBT Health Res 11, online: <https://www-tandfonline-com/doi/full/10.1080/15574090802092879>.
40. Kristie L Seelman, “Recommendations of transgender students, staff, and faculty in the USA for improving college campuses” (2013) 26:6 Gender & Education 618, online < https://www-tandfonline-com/doi/full/10.1080/09540253.2014.935300>.
41. Tiffany K Chang and Y Barry Chung, “Transgender Microaggressions: Complexity of the Heterogeneity of Transgender Identities” (2015) 9:3 J of LGBT Issues in Counseling 217, online: < https://www-tandfonline-com/doi/full/10.1080/15538605.2015.1068146>.
42. Brett Genny Beemyn, “Making Campuses More Inclusive of Transgender Students” (2005) 3:1 J of Gay & Lesbian Issues in Education 77, online: <https://www-tandfonline-com/doi/abs/10.1300/J367v03n01_08>.
43. Patrick R Miller et al, “Transgender politics as body politics: effects of disgust sensitivity and authoritarianism on transgender rights attitudes” (2017) 5:1 Politics, Groups, and Identities 4, online: < https://www-tandfonline-com/doi/full/10.1080/21565503.2016.1260482>.
44. Heidi M Levitt and Maria R Ippolito, “Being Transgender: The Experience of Transgender Identity Development” (2014) 61:12 Journal of Homosexuality 1727, online: <https://www.ncbi.nlm.nih.gov/pubmed/25089681>.
45. CM Wiepjes et al, “The Amsterdam Cohort of Gender Dysphoria Study (1972-2015): Trends in Prevalence, Treatment, and Regrets” (2016) 15:4 J Sex Med 582, online: <https://www.ncbi.nlm.nih.gov/pubmed/29463477>.
46. Linda W Wesp and Madeline B Deutsch, “Hormonal and Surgical Treatment Options for Transgender Women and Transfeminine Spectrum Persons” (2017) 40:1 Psychiatric Clinics of North America 99, online: <https://www.sciencedirect.com/science/article/pii/S0193953X16300727?via%3Dihub>.

To conclude, advances in our understanding of gender identity are forcing a reconceptualization of what it means to be a man or a woman. While these paradigms are not likely to disappear in the near future, they are certainly being mitigated and diluted as gender non-conformity becomes more prevalent and recognized. Laws and institutions that for centuries have acknowledged man and woman as the essential biological duality in humans need to be changed accordingly. The door  to further dialogue on these questions should be open, to encourage self-education and understanding of the various complex ideas and concepts at issue. Hopefully, the sources provided here as well as other analyses on the TalkRights blog can hope further this discussion.