Call Me Caitlyn: Expanding the Circle of Human Concern Commentary
Call Me Caitlyn: Expanding the Circle of Human Concern
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JURIST Guest Columnist Peter Hammer, of Wayne State University Law School, discusses the controversy surrounding Caitlyn Jenner and rights for transgender individuals…

Please call me by my true names,
so I can wake up,
and so the door of my heart can be left open,
the door of compassion.
Call Me By My True Names
-Thich Nhat Hanh

Call me Caitlyn.” Few human needs are greater than the desire to belong and to be called by your true name. There are few traumas more severe than being shamed, ostracized and socially outcast. john powell and his colleagues at the Hass Institute for a Fair and Inclusive Society have highlighted the universal significance of “othering and belonging” and the importance of expanding the circle of human concern.

Notions of “othering” and “belonging” provide a powerful frame to embrace the concerns of our transgender brothers and sisters. Calling another person by their chosen name can be a profound means of expanding the circle of human concern. It sees and acknowledges an individual for who they really are.

These notions are tellingly consistent with Justice Kennedy’s language in Obergefell v. Hodges, which recognizes the constitutional foundation of marriage equality. Kennedy’s reasoning is grounded in a basic respect for an individual’s ability to define their own identity.

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

An affirming interpretation of American history and constitutional law tells a positive story of an ever expanding circle of human concern. Notions of rights and personhood have expanded from the narrow concerns of white male property holders, to white men as men, to men regardless of race, to an increasing concern for the rights and needs of women, to and expending recognition of the dignity and rights of the LGBTQ community.

But even from this positive perspective, many in the transgender community still feel the burdens of profound othering — standing on the outside looking in. In this context, Caitlyn Jenner has created important space for more open dialogue and more compassionate understandings.

Stories are more powerful than statistics and few stories are more iconic for transgender persons than Caitlyn Jenner’s search for individual meaning and identity: a story moving from Olympic decathlon champion, to ever-present breakfast companion on the Wheaties box, to reality TV star, to the first person that many Americans feel like they “know” to express in very human terms what it means to struggle with the challenges and triumphs of being transgender. The dignity with which she told her story met with a surprising level of respect and empathy in the media and in the general public.

This is a tremendous service, but it is important to realize that the struggles of most transgender Americans have little of the glamor of Caitlyn Jenner or Vanity Fair magazine. Transgender individuals are often the most marginalized and othered members of an LBGTQ community that itself is frequently marginalized and othered. The perverse logic of exclusion does not end there. Consistent with the teaching of intersectionality, transgender women of color are often the most victimized of a victimized group. The National Coalition of Anti-Violence Programs found that 72 percent of victims of anti-LGBTQ homicide were transgender women, and 89 percent of victims were people of color.

While hate crimes and murder represent the most extreme examples of discrimination and othering, our transgender brothers and sisters face daily humiliations, large and small. Love v. Johnson, a case brought by the Michigan ACLU on behalf of six transgender persons, illustrates some of the challenges of being forced to stand outside the circle of human concern.

Most of us take our driver’s license for granted. It provides a picture ID and designates basic information, such as our height and weight and eye color and gender. And there lies the catch. What driver’s license should be available to an individual born of one gender who identifies with another? In Michigan, it is nearly impossible for transgender individuals to correct the gender on their driver’s licenses and other forms of state identification.

In 2011, Secretary of State Ruth Johnson implemented a policy refusing to change the gender marker on an identity document unless the person produces an amended birth certificate showing the correct gender. Most do not realize how difficult it is to amend one’s birth certificate. Michigan law requires a person to undergo gender confirmation surgery to receive an amended birth certificate. This is an expensive process that can present serious health risks. Moreover, it is a process that only a fraction of transgender individuals opt to undergo.

Other states require a court order to switch the gender designation on a birth certificate, while three states prohibit gender marker changes on birth certificates altogether. In contrast, federal policy does not require surgery to change the gender marker on US Passport or Social Security records.

What does it mean for a transgender person to go through life with the wrong driver’s license? Named plaintiff Emani Love explains:

I’m very comfortable and confident in who I am, but I shouldn’t have to divulge my personal information or ‘come out’ as a trans person every time I want to cash a check or cast a ballot. I just want ID that is truthful in its description of who I really am.

The circle of human concern needs to be expanded to include people like Emani Love.

Words can be a powerful marker of inclusion and exclusion. Even more than its ruling, the language of the 1986 Supreme Court opinion in Bowers v. Hardwick, upholding the constitutionality of state criminal bans of expressions of intimacy, was a hostile act of judicial othering. This all changed with Justice Kennedy.

I was working in Phnom Penh, Cambodia, on June 26, 2003, when Lawrence v. Texas was decided, overturning Bowers. I read Kennedy’s opinion on the internet, while working on a moored riverboat that used to function as a floating dance hall and brothel. It was now the headquarters of an international NGO assisting, among other groups, a union of sex workers, including a number of amazing transgender women. Kennedy’s language of dignity was language of inclusion, truly expanding the circle of human concern. It was the first time I felt that the Supreme Court was speaking to me as a gay man and acknowledging me as a real human being.

The sex workers’ union on the riverboat was proudly organizing under a banner that read “Sex Work is Work.” These women were some of the smartest, strongest and funniest people I have ever met. They led an impressive challenge to an internationally funded and sponsored clinical trial targeting them as a vulnerable population to test antiretroviral drugs as an HIV prophylaxis. By demanding respect for basic standards of medical ethics, they successfully protected their rights and the Prime Minister shut down the trials.

What this group of transgender women really wanted, however, was beyond their reach. They sought my advice as a lawyer on how to get the police to stop beating and abusing them. I have seldom felt more helpless as a supposed expert offering advice. They stood marginal and victimized, outside the circle of human concern. They had little protection against the police.

While the language of Kennedy’s opinion in Lawrence was light-years beyond that of Bowers , his language in Obergefell reflects continued profound evolution. The language of “dignity” has evolved to a fundamental recognition of self-identity. This offers continued hope to members of the transgender community and a road-map to the further expansion of the circle of human concern.

To be asked to be called Caitlyn is to ask to be seen as the unique human being she is, as she chooses to define herself. It is a human call to be respected and to belong. It is a simple request to be called by her true name.

Peter J. Hammer is Professor of Law at Wayne State University Law School in Detroit, Michigan. He received a BS and two BAs from Gonzaga University and a JD and a PhD from the University of Michigan. He serves as the Director of the Damon J. Keith Center for Civil Rights, which is dedicated to promoting the educational, economic, and political empowerment of under-represented communities in urban areas.

Suggested Citation: Peter J. Hammer Call Me Caitlyn: Expanding the Circle of Human Concern, JURIST – Academic Commentary, August 1, 2015, http://jurist.org/academic/2015/08/peter-hammer-caitlyn-jenner.php


This article was prepared for publication by Cassandra Baubie, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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