Rosie Wang, Resident Blogger (’14, Columbia Law School)

The Utah Senate has passed SB60, a bill that would force health care providers to collect information from women seeking abortions on their ethnicity, the stage of pregnancy, and the reason given for the procedure. While the federal government already provides this data, this bill is a preventative measure to ensure that even if federal government changes its approach, Utah will still have access to this information. This is troubling because the sponsor of the bill, Senator Margaret Dayton, has previously expressed interest in challenging race-selective abortions as well as targeting specific cultural preferences that supposedly give rise to sex-selective abortions. The information sought to be gathered by SB60 sounds like it could be a stepping stone to a number of racially charged campaigns that disguise their anti-abortion agenda with a veneer of concern about women and people of color. This is a strategy that has been attempted before, with billboards accusing black women who seek abortions of committing genocide. This bill also sounds like a precursor to so-called “Prenatal Non-Discrimination Act” or PRENDA, which would have required health care providers to report women they suspected of seeking an abortion for reasons based on the fetus’ gender or race. PRENDA purported to be pro-women but was actually a way to both scrutinize and stereotype women based on race and create arbitrary obstacles to abortion access.  PRENDA failed in the House of Representatives last May.

Senator Dayton’s assumptions about the makeup of society and people’s ability to function within it suggests that she is not aware of the effects of being denied reproductive choice. It is her stated belief that the “traditional family is the fundamental unit of our society” is blind to the fact that “traditional families” account for only 7% of the US population. It is her belief that “personal initiative is better than government programs,” when unplanned pregnancy perpetuates the cycle of poverty. Dayton’s focus on personal initiative sounds like another way of saying that she would not be in favor of investing in programs targeting poverty, hunger, and poor health outcomes that would help women considering abortions post-pregnancy. Legislators who ignore the reality of family structures and what it takes to sustain them can hardly be presumed to be using this type of information to the best interest of women.

Rosie Wang, Resident Blogger (’14, Columbia Law School)

Going into the midnight premiere of Django Unchained, the only real context I had was that (1) It was a Quentin Tarantino movie and (2) in Spike Lee’s opinion, it was racist. Coming out of it, I thought, “Wow, that was breathtakingly racist.” And not because of the copious use of racial slurs (which is what Mr. Lee objected to).

There’s something much more subtle and insidious in it’s portrayal of slavery: It adopts wholesale and without irony some of the worst plantation tropes and erases and reinterprets the historical narrative of black women’s lack of reproductive autonomy.

In Django Unchained, a German bounty hunter frees a slave, Django and partners up with him in capturing criminals. Django is dedicated to finding and rescuing his wife Hildy, who now belongs to a plantation owner who has male slaves killing each other for sport. It’s supposed to be okay for Tarantino to write and tell this story because it is a revenge fantasy of slaves rising up against their masters and thus subversive and empowering. However, there is a lot that goes wrong in the execution of this idea.

The black body is on sensationalistic display in a way that no white body equivalently is. Hildy is put in the “hot box” for trying to run away, and has water splashed over her nude body when she is released. Django is suspended upside down, naked and about to be castrated after his true intentions to save his wife are revealed.  Nearly naked black men fighting to death appear on screen multiple times. These are fraught images because the institution of slavery viewed black women’s bodies as  open for sexual consumption and black men’s bodies as threatening and open for torture. The way Django Unchained offers images of naked black bodies for visual consumption is exploitative and revels in the morbidity of the scenes, rather than aiming for historical accuracy.

With no historical background knowledge, someone watching the first scene depicting a plantation might think that a black woman’s life under slavery consisted of swinging on oak trees in hoop skirts – as long as she didn’t try to escape. In reality, coerced reproduction and rape is the way that slavery was sustained and slave owners’ wealth multiplied after the 1807 ban on the slave trade. The monetary worth of slave women being auctioned was determined by speculations on her reproductive capacity. Slave owners would pair their slaves with multiple partners and force them to engage in sexual activity without regard for any person’s consent. Slave women were especially vulnerable to sexual assault by their masters and the resulting children from such rapes were targets of violence by the master’s wife.

Harriet Jacob’s narrative of her own experience, Incidents in the Life of a Slave Girl describes her 55 year old master beginning sexual advance on her when she was 15. She eventually forms a relationship and has two children with another white man as the only method for escaping him. Children were often sold away from their mothers, dashing any potential of forming family bonds. Hildy is 27, and some mention is made of her role as a sex worker, but the very real reproductive consequences are never addressed. The legacy of all this is an entrenched distrust of the medical system among many black women which leads to poor health outcomes and the stereotype of not being able to be trusted to make their own reproductive decisions.

Josie Sustaire, Resident Blogger (’14, University of Oregon School of Law)

Suppose a woman chooses to have a child.  Suppose that she elects also to raise the child after it’s born.  You may be thinking, “Great.  Good for her.”  But suppose that the woman also happens to be addicted to drugs.  Are you still excited for her?  Is she any less suitable to invoke her rights?  What should be done?  Legislators in Alabama have answered these questions by prosecuting women who expose their children to drugs while pregnant.  The Alabama statute, Ala.Code 1975 § 26-15-3.2, was originally put on the books to protect children from exposure to meth labs.  However, the law has been expanded through litigation to encompass fetal exposure to drugs in utero, essentially offering legislator’s a backhanded way of circumventing a woman’s rights.

“Laws concerning a pregnant woman’s treatment of her fetus are not without precedent,” Ada Calhoun points out in her New York Times article on the subject.  “Since abortion was legalized in 1973,” she says, “hundreds of women across the country have been arrested for harming their fetuses, with charges ranging from child endangerment to first-degree murder.  Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, predicts a grim future if laws like Alabama’s stay on the books.  “Everyone talks about the personhood of the fetus,” she remarks, “but what’s really at stake is the personhood of women.  It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.”

And, as if to add insult to injury, medical research has shown that quitting cold turkey while pregnant can be fatal to the fetus.  So, that same hypothetical pregnant woman who abuses drugs, if she has access to adequate medical care, may be told by a medical professional that she should not quit but rather should maintain acceptable levels to avoid miscarriage.  Given the research, maintaining low levels of the drugs in order to save the fetus seems much safer.  BUT if the state that the woman lives in has a law like Alabama, she will still face criminal charges once the baby is born and traces of drugs are found in the baby’s system.

There must be something we can do about this.  We must find a way to reconcile the rights of women with the interests of the state in ensuring the health and safety of infants.  Why does a woman’s rights have to be sacrificed?  How can Alabama legislators believe that two wrongs can make a right?  What we can be sure of is that Alabama has no plans of backing off.  Over 60 women have been incarcerated for child endangerment and the legislature has submitted proposed amendments to the statute to explicitly apply to in utero exposure.

Now don’t get me wrong.  I love the babies.  I want what is best for them.  But how can locking their mother up for 10 years (mandatory sentence in Alabama is 10 years to life) because she is a drug user be the best option?  Sure she should not have used drugs while pregnant, but hindsight’s 20-20 and what’s done is done.  What can we offer her moving forward?  Drug treatment options seem like a much more beneficial option.  I would also encourage changing regulation of methadone clinics due to the risk of methadone exposure to fetuses.  There may not be an easy solution, but we certainly can’t go on like this.

Note:  The Guttmacher Institute has a state policy pdf that states “No state specifically criminalizes drug use during pregnancy,” and I have submitted a request for clarification and am currently awaiting their response.

Ash Moore, Resident Blogger (’14, University of Oklahoma College of Law)

The recent tragedy in Newtown, Connecticut has created a lot of reactionary political push from the left for more gun control. I own multiple guns. I believe the second amendment is broad and sweeping. I believe it is one of the secured rights that makes this country unique and legally superior. However, I also think the implicit right to privacy in our Constitution that is necessary to fulfill the promises of the second amendment and others, is also an important secured right.

This right is what Roe v. Wade was based on. After the recent 40th anniversary and discussion about the ever-increasing restrictions and regulations, Newtown got me thinking. The right wing trusts every American who can walk and chew gum with guns. But they don’t trust an educated woman to make choices about her own body and family (including but not limited to abortion). On the other hand, the left wing wants the government to trust every American who can walk and chew gum with decisions about the most important building block of society, the family.

I remember coming to law school thinking of Justice Scalia as a cold-hearted, heinous Justice who sought to disenfranchise the American people (my parents are pretty liberal criminal defense attorneys). But the first case I read in law school had an opinion by Justice Scalia that I agreed with. I immediately called my mom in tears thinking something was wrong with me. She consoled me, but was obviously upset by the news. She asked me what the name of the case was and when I told her it was DC v. Heller, a gun rights case, she sighed some relief and said, “calm down, Idiot. That’s different.”

Before too long I realized she was right, but I still don’t understand why. Why is it encouraged for political parties and individuals to tailor their arguments to the outcome they want? Why is it encouraged for politicians to flip-flop their reasoning but not their outcomes? There is a lot I don’t understand in this world. I don’t know why they leave chip bags two-thirds empty or how they get those ships in those bottles. But I thought I understood the Constitution.

I know argument exists over the proper way to interpret the Constitution. But I didn’t know people reasoned backwards to get the result they wanted out of it. I believe the political parties should take a stance; you either trust the American people to make their own choices and properly exercise their rights, or you don’t. But you don’t get to pick and choose which rights they get control over. Whether the discussion is about gun or reproductive rights, the argument will always turn to the power over life and death. But I think all the mudslinging and buzzwords cloud the bare bones arguments. Probably intentionally.

The only thing better than being a Texan is being an American. There are a lot of things wrong with my state and my country. But as a patriot, it is my job to question when appropriate and defend when needed. I am a second class citizen in a lot of ways. But I believe in this country and in the people who make it up. That’s my stance. What’s yours? Do you trust me and others, or not?

Elisabeth Smith, Resident Blogger (’14, University of Washington School of Law)

On Saturday, February 2nd, my LSRJ chapter hosted a conference titled “Reproductive Justice: Meta Rights and Milestones.” In the process of organizing the conference, I’ve thought a lot about RJ’s meta rights: the right to have a child; the right not to have a child; and the right to parent the children you have with dignity, free from violence and oppression. Two recent news stories demonstrated how some people with privilege have attempted to limit those rights by ridiculously redefining them.

I’m sure you’ve all heard about the New Mexico GOP state representative, Cathrynn Brown, who introduced a bill last week that would bar abortions for rape victims. How you ask? Well, by making it a felony for women who become pregnant as the result of rape to have an abortion because an abortion is, by the bill’s definition, evidence tampering.

Yep.

When this story went viral, the esteemed representative released a mind-twister of a statement:“House Bill 206 was never intended to punish or criminalize rape victims. It’s intent was solely to deter rape and cases of incest. The rapist–not the victim– would be charged with tampering of evidence.”

So, the rapist whose assault “created” the evidence would also be charged with tampering with that evidence if his victim chose not to have a child? Hmmm. Try substituting another crime into this scenario if you want to really see how ridiculous it is.

Just over the border in Colorado, another story emerged. As a defense to a medical malpractice suit, lawyers for St. Thomas More hospital, a Catholic hospital in Cañon City, Colorado, argued that a fetus is not a person.  The hospital is run by Catholic Health Initiatives, a national chain that follows the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Part IV of the directives state “The Church’s defense of life encompasses the unborn and the care of women and their children during and after pregnancy. [at p23] Many people have crowed about the hypocrisy of championing the legal argument that a fetus is not a person while at the same time prohibiting abortion and contraception on the theory that life begins at conception.

In New Mexico, a fetus becomes evidence and at Catholic hospitals following the bishops’ directives, a fetus is a fetus in cases of medical malpractice, but not when someone would like access to contraceptives or abortion. In such cases, your ability to decide how and when to have a child or how to grieve for lives that you anticipated welcoming is interpreted through the prism of someone else’s ideology and whether its convenient for them to demonstrate some consistency.

Those who oppose the right to have an abortion need to demonstrate integrity to their position. Abortion is not felony “evidence tampering” and if life begins at conception, it does so even when money is at stake.

The following are the second part of condensed remarks given by Law Students for Reproductive Justice Fellow Laura Nixon on October 6, 2012 at William & Mary School of Law’s Reproductive Justice Symposium, sponsored by their Initiative on Gender, Sexuality, and the Law. Read the first part here.

Now, I want to turn to addressing some specific barriers to reproductive justice for transgender people. I want to ground this conversation in the reality that transgender people have sexual partners who are men or women  – and that when we make blanket assumptions about sexual behavior based on gender identity and sexual orientation, we may miss reproductive health issues that are important to members of our community.

The National Center for Transgender Equality has created an excellent fact sheet showing us some of the important reproductive healthcare issues for transgender people. Foremost of these issues is how often transgender people are denied healthcare by providers outright – in national surveys, somewhere between 19 to 27 percent of transgender people report having this experience.  Related to refusal of care, is how often transgender people must educate their healthcare providers about appropriate clinical care and the paucity of adequate information about sexual health available to transgender people.  With regard to reproductive health, many transgender men who have sex with men report being more concerned about unintended pregnancy than sexually transmitted infections, even as they may be at high risk for both.  Additionally, requirements that people undergo sex reassignment surgery before being allowed to change the gender marker on their identity documents (such as driver’s licenses or birth certificates) essentially requires that they be sterilized in order to obtain these correct documents – which should be a profound concern for LGBT and reproductive justice advocates.

With respect to the experiences of transgender people, an important question to ask is: are our language choices in the reproductive health, rights, and justice movements drawing people in or are we pushing people out? In terms of reproductive health care, Dean Spade, a trans legal scholar and activist has proposed some ideas about how anyone working in the health field can change the language they use, so that transgender people know that their needs are being considered, met, and welcomed. In terms of reproductive rights and justice movement-building, we have heard a lot about the “war on women” over the past year, given the number of unprecedented legislative attacks on reproductive freedom.  Sometimes in these discussions, we may have heard people say something to the effect of “Only people with vaginas should be deciding these issues!”  This is a tongue-in-cheek way to demand that people who are most affected by these attacks on reproductive freedom be heard on these issues, and be the decision-makers in their own reproductive lives.  However, it’s worth thinking a little more deeply about how those statements may box out transgender people from the movement and communicate that they don’t have a voice in these issues because people who are women may or may not have vaginas.  In the same way the Dean Spade has suggested that we shift our language about reproductive anatomy in the healthcare setting, we must think about our language choices in reproductive rights and justice movement-building so that our work truly reflects the needs and experiences of all members of our community.

I hope the information and research that I have shared today shows us why harmful restrictions on contraception and abortion care affect LGBT people and how we can build healthcare systems and movements that are really responsive to the reality of LGBT peoples’ sexual and reproductive experiences.  Our LGBT rights and reproductive health, rights, and justice movements have strong  – not just theoretical – connections.  Let’s continue to work together to build a better world!

The following is part one of condensed remarks given by Law Students for Reproductive Justice Fellow Laura Nixon on October 6, 2012 at William & Mary School of Law’s Reproductive Justice Symposium, sponsored by their Initiative on Gender, Sexuality, and the Law. Stay tuned for part two tomorrow!

The National Center for Lesbian Rights has been concerned about issues of reproductive health and rights since our founding – and we are grateful to the reproductive justice movement for developing new frameworks to think about issues at the intersection of reproduction and sexuality.  Reproductive justice is the right to have children, the right to not have children, and the right to parent the children we have. In fact, the right to have children and to parent the children formed the basis of the founding of the National Center for Lesbian Rights. We were founded in 1977 because many lesbian mothers were losing custody of their children because of their sexual orientation.  Seeing this desperate need, Donna Hitchens – a law student like many of you here today — decided to start the Lesbian Rights Project which eventually grew into the National Center for Lesbian Rights.

My presentation today will touch on the right to have children and to parent the children we have.  I will directly address the right not have children, and why issues of access to contraception, emergency contraception, and abortion care have a big impact on the LGBT community – issues that has been raised by a number of activists and organizations working in these two movements.  Then, I will describe some specific barriers to reproductive justice for transgender people, and ask us to consider how our LGBT rights movement and reproductive justice movements can be stronger allies in our fights for social change.

The right to have children encompasses situations that LGBT people are already, tragically familiar with — discriminatory state adoption statutes, courts that fail to recognize non-biological parents as full and equal parents, and access to affordable reproductive technologies.  The right to have children also requires us to consider issues we may believe are outside of LGBT rights, but also implicate the right to have children, such as the effect of family caps on women in poverty. Family caps impact children in poverty by denying them critical support for their health and well-being – and may have the effect of incentivizing abortion for poor women subject to this policy.  It is a profound reproductive injustice for coercive state policies to force people to make these kinds of decisions about having children.

The right to parent the children we have includes if and how same-sex parents are placed on the birth certificates of their children, access to second-parent adoptions, how these parental rights travel across state lines, and how parental rights play out in the case of separation or divorce.  The right to parent the children we have also includes combating how the child welfare system systemically punishes poor women of color struggling to raise their children and the devastating impact of child welfare system and immigration, where it has recently been revealed that more than 5,000 children have had the traumatic experience of being placed into foster care while their parents are subject to deportation proceedings.

The right not to have children – access to contraception, emergency contraception, and abortion care – are the focus of my presentation today.  The LGBT rights movement and the reproductive rights and justice movements have strong  – not just legal and theoretical – connections to one another in this area for several reasons that law professor Ruthann Robson has expertly identified in this op-ed.  First, there is a devastating prevalence of rape and sexual assault in the United States, which includes an incredibly high number of lesbians who are raped or sexually assaulted in their lifetimes. Secondly, our sexual identity may not always align with our sexual behavior.  For example, surveys have consistently shown that many lesbians have a history of sexual contact with men, and that in many of those encounters, no condom was used, thus increasing the likelihood of an unintended pregnancy.  Finally, public health research has shown us that queer youth are uniquely susceptible to unintended pregnancy.  In fact, several studies have documented that young lesbians are two to ten times more likely to become pregnant than their heterosexual counterparts for a number of reasons that speak to how vulnerable queer youth are to the inadequacies of abstinence-only sex education, sexual abuse and/or substance abuse, homelessness, and the kind of surveillance and harassment that may lead young lesbians to have unprotected heterosexual sex in order to hide their sexuality.

**Laura’s remaining remarks, detailing barriers to reproductive justice for transgender individuals, will be posted tomorrow.**

Rosie Wang (’14, Columbia Law School)

My parents have been joking for 15 years that when I have children, they’ll move close by so they can help babysit them and tutor them in math. This scenario has always absolutely horrified me because (1) learning the times table at age 4 was an experience I wouldn’t wish on anyone and (2) who said I wanted kids? Its a matter I’m ambivalent on, but start feeling actively resistant towards on principle, once people knowingly say that I’ll change my mind and or rehash the tropes of parenthood being the noblest calling. This may have contributed to me amusing myself as a young adolescent by reading “childfree” livejournal groups that served as forums for people to discuss the stigma they felt from not wanting to have children. Specifically, there was a childfree group that I read out of interest in some of the feminist, pro-choice ideas, and a childfree “hardcore” group I read out of a morbid fascination with people who had built up so much resentment that they called parents “moos” or “breeders.”

This movement, more extreme parts included, is still alive and well. And looking at it from a reproductive justice angle is fascinating. Believe it or not, it is possible for reproductive justice advocates who work for healthy mothers and infants and for who say they actively dislike children and mothers to find common ground. For instance, some women who do not have children feel taken advantage of by the workplace accommodations given to women with children. From a different point of view though, you could say both groups of people are on the same side. Both women with and without children want their choices to parent or not to parent respected. Rather than developing antagonistic feelings, the answer may be better found in working together to develop workplaces that do not ask women without children to “pick up the slack,” but instead hire more employees so that no one has to disproportionately sacrifice their life outside of work.

On another workplace angle, as recently as 1991, courts have reviewed cases in which employers have banned fertile women from job duties that may cause birth defects with both an assumption that their female employees would all have children and an assumption that they knew what was best for these women. The posts I used to find the most interesting were by people who had never had children chronicling the frustrating experience of being denied tubal ligations by doctors who were sure they would regret it. Though the reproductive justice movement was founded by women of color, who have historically experienced forced sterilization, it makes perfect sense that it also champions the rights of the “childfree” to be voluntarily sterilized. The recurring theme is a familiar one from legislative battles surrounding abortion and contraception: Those with power arising from political clout, a professional degree, or employment position are trying to control how those with less power how to live their reproductive lives. And though the ability to choose is usually associated with the right to time and space having children – it is just as much of a reproductive right to choose to never have children.

Sara Taylor (’11, University of Michigan Law School)

*trigger warning for discussion of sexual assault

I managed to go to a bar the other weekend without being molested.  Pure luck, apparently.  I ran out to the grocery store late last night, too, and missed the unwanted groping.  I am having a great week!  Ooooh, maybe it’s because I was in loose-fitting pajamas, unwashed hair in a bun, glasses, slippers – on both occasions.  But what about the dozen or so years I, a woman, have been engaged in the risky behavior of going to bars and grocery stores?  What insight can I offer so other women can understand and possibly emulate my incredible assault-free hot streak?  Take it away, Judge Hatch!

Apparently, women who place themselves in vulnerable situations have a duty to be more vigilant to avoid becoming victims.

Several days ago, Arizona Superior Court Judge Hatch sentenced an ex-law enforcement officer who sexually assaulted a woman at a bar this past July.  After having a bit to drink, the then off-duty officer came up behind the woman, a friend of friends, put his hand up her skirt and fingered her.  He got tossed from the bar and the woman naturally participated in his subsequent prosecution (though let’s have a moment for her courage to do this, as it will become patently clear just how stacked the deck is against her).  Judge Hatch suspended jail time and sentenced him to probation, community service, treatment, and also decided this was the appropriate forum to admonish the victim for being a victim. Said Judge Hatch, “You learned a lesson about friendship and you learned a lesson about vulnerability” and “if you wouldn’t have been there that night, none of this would have happened to you.”

Well, I suppose that stands to reason, but how, exactly, does proximity become proximate cause?

Apparently, bad things can happen in bars. Even going to the grocery store after 10 p.m. can be dangerous for a woman.

Going forward, in furtherance of the common law, this is simply too vague.  I feel like I, too, must learn a lesson about friendship and vulnerability, even though I have narrowly escaped groping all these years.  If sexual assault survivors who venture out after dark and forget to leave their vaginas at home is a mitigating factor, what are the guidelines?  Any hemline limits?  Pants only?  What percentage of cleavage clears the threshold?  Can one be friends of friends of cops?  Have a drink?  Can a woman wield any sexual power at all, or would that be inciting dominance?  Let’s be clear, for heaven’s sake, this is a lesson.  What behavior needs to be demonstrated to believably point fingers at the fingerer?

Tell you what, I did learn something here.  The judge also provided some sage wisdom from her mother…when you blame others, you give up your power to change.

Well, your honor, mom was right.  When you blamed others, you gave up your power to change this tired, archaic, degrading narrative.   That duty of vigilance to avoid victimization was yours.

Rosie Wang, LSRJ Summer Legal Intern

*trigger warning for transphobia.

In mid-December of last year I was at the tail end of finals. I hadn’t left the two block radius around library for weeks. I kept coming up with terrible law jokes like: “What did the turtle say after he had to pay damages to a thin skull plaintiff? …Tort-is-hell.” Obviously, I was facing major burnout.

It was under those conditions that I decided to give up on studying in favor of escaping into a more cheerful version of mid-20’s New York life than I was currently leading – namely, by watching Netflix marathons of How I Met Your Mother. My classmates referenced it constantly and favorably as a cultural touchstone for our generation. I figured that since one of the main characters attended Columbia Law, it would almost be like studying vicariously. Well, Marshall had way too much free time to be remotely realistic as a law student and the show turned out to be virulently transphobic. It was a multi-season phenomenon (spoiler alerts ahead!):

Season 1, Episode 19:

[Barney pays an escort $500 to attend a social function with Ted.]

Barney: Ted you’re my cabrone, you think I’m going to stick you with some toothless tranny from Port Authority?

Season 2, Episode 9:

[Ted’s wonders why his friends dislike his date. He alternately imagines that she had a man falsely imprisoned for statutory rape, enjoys killing puppies, and the following:]

Ted: I’ll be back in one second.

Kathy: I bet he’s going to the urinal. Yeah, I remember when I had a penis.

Season 3, Episode 8:

Ted: If there’s some potential “Ohhh….” [dealbreaker] moment, I want know about it right away. I mean, what’s the alternative?

[Cut to fantasy sequence Robin and Ted at the altar]

Priest: I now pronounce you man and wife.

Ted: I love you.

Robin: I used to be a dude.

Ted: Ohhh….

Season 6, Episode 5:

[Ted, in a rough part of town, is approached by a blonde woman shortly after being approached by a cross dressed, possibly transgender sex worker.]

Ted: Look, mister you are very convincing, and I’m very flattered. Confused, even, but I’m not looking –

Zoe: Definitely not a drag queen. But you have me rethinking this eyeshadow.

[Later in the episode after Ted compliments her looks.]

Zoe: That’s sweet. It would be sweeter if you hadn’t said I was a tranny before, but it’s still sweet.

Season 7, Episode 5:

[Ted wonders why his date is secretive. A fantasy sequence ensues where Ted is in the bathroom of the restaurant and Janet comes in.]

 Ted: This is the men’s room.

[Janet strides to the urinal and hikes up her dress.]

Janet: I know. I’m a dude.

Ted: [gasp of horror]

Ted, the main character, the everyman we are supposed to champion and identify with, apparently lives in constant fear of transgender people and his friends are not much better. HIMYM consistently takes cheap, easy shots at trans people, a kneejerk reaction to the portrayal of transgender sexuality and bodies as something unfamiliar to be feared. The writers clearly assume that the audience will guffaw along with this, because they assume that everyone agrees that a person undergoing a gender transition is the least desirable partner possible, someone’s worst nightmare. And on top of being portrayed as inherently unattractive, transgender people are also portayed as inherently immoral. Ted imagines trans women as predators who trap poor deceived straight men into marriage by pretending they are cis-women (because how else would they find a romantic partner)! People in the transgender community even belong in the same train of thought as sadists who target baby animals. The slur “tranny” is bandied about as if it were hilarious in and of itself. Zoe, who later becomes Ted’s serious girlfriend, uses it in an  especially clueless way by equating cross dressers, drag queens, and “trannies” into one non-conforming group of People She is Insulted To Be Associated With.

The message that biology trumps any internal sense of self or personal choice is reinforced through Ted’s imaginings. The hypothetical “reveals” are always crass and focused on intimate anatomy and bodily functions. People are identified as transgender, not because of different gender expression, but because they visually or verbally announce the presence of a penis or erstwhile penis. All this is completely disassociated from any reference to internal sense of self or humanity.

If it seems ridiculous that this actually happens on a show watched by over 9 million people, what is even more startling to is that HIMYM has won six Emmy’s and was nominated for a GLAAD award. The GLAAD nomination probably is a result of HIMYM starring an openly gay actor and writing a gay brother for him (who is a total amalgamation of non-threatening gay stereotypes). However, Neil Patrick Harris’ sexual orientation in no way begins to excuse the frequent potshots at people with gender identities that do not match the biological sex they were born with. Indeed, GLAAD awards are given to recognize “outstanding images of the LGBT community,” but what part of being outstanding is the tired trope of “gay panic” supposed to fit into?

Season 8 of HIMYM starts in two months. Its highly anticipated as the season in which the audience might find out the answer to the titular question, but I’d rather know when these characters will meet some empathy.