Archive for category Access to Justice

All about breasts?

Jodi Jaecks, a breast cancer and double mastectomy survivor, recently won the right to swim topless at Seattle public pools during adult lap swim times.  According to media coverage, the general rule about attire at public pools is that all women must wear tops.  (I couldn’t find a direct link to actual policy from the Seattle Parks and Recreation Department.)  According to a recent press release from Seattle Parks and Recreation, the decision for Jaecks extends only to her, and only for adult lap swim times.  At present, any subsequent similar requests will be evaluated on a case-by-case basis.

Of course, additional case-by-case evaluations seem like an inefficient waste of time, money, and other procedural resources.  Why should Parks and Recreation require similarly situated people to go through the appeals process to get essentially the same exception to the rule?  Maybe they officials realized this problem; additional coverage of the issue suggests that the Parks and Recreation Superintendent is considering a “wholesale” change to the policy governing attire at public pools, and that such a broad spectrum change wouldn’t destroy the “family friendly” pool environment.  (Parks and Recreation offered this “family friendly” argument in support of its initial denial of Jaecks’s request.)

Let’s think a bit about what the Superintendent and any committee members should consider when evaluating a wholesale policy change.  There has been much chatter in the press about normalizing visions of breast cancer survivors.  (Go here and here for a couple of examples.)  There’s also the fact that full bathing suits can be quite painful for women living after double mastectomies.  But I want to focus on a broader issue that The Stranger touched upon briefly in its early coverage of Jaecks’s story.  How does the current policy apply to trans and queer individuals?  A post-op trans FTM person might look similar to Jaecks, but would be allowed to swim topless because he’s a he.  A pre-op trans FTM also identifies as a he, but has breasts.  So Parks and Recreation would force him to wear a bikini top.  After all, the current policy requires “gender appropriate swimwear.”  And what about a pre-op MTF?  In this case, a woman with no breasts… is she forced to go topless to conform to her current gender designation, socially imposed upon her?  (Interestingly, that would produce a result directly opposite of that which Jaecks initially received… a woman with no breasts forced to go *with* a top.)  How are cross-dressers treated?

In short, what exactly are the officials trying to cover up through the current policy?  It seems to reach beyond breasts and nipples.  It seems to reach a much broader policy of covering up bodies that do not conform to traditional notions of sex and gender (not to mention bodies that violate conventional ideas of functionality and ability).  Especially in a city known nationwide for its queer and trans activism (and apparently one of 2012’s “Gayest Cities”), in a state whose legislature legalized marriage equality, Seattle Parks and Recreation has much to consider here… beyond breasts.

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“Culturally competent” health care

A recent NYT story retells the story of a patient who needed a catheter.  The patient presented as female, engaging in certain feminine gender performative behaviors.  The day of the surgery arrived and, lo and behold, the surgeon was surprised to find a biological male.  It seems the pre-operative work-up did not include sufficient discussion with the patient or a physical examination of the patient’s body into which the surgeon was soon to cut.

The real life problem is apparent.  Non-gender-normative individuals have a much more difficult time finding meaningful access to health care.  As the article depicts, this is not the first instance of or revelation about this type of problem.

Recent HHS recommendations seem to attempt to curtail this effect.  Among other things, “HHS will encourage new and existing health profession training programs, including behavioral health … programs, to include LGBT cultural competency curricula. The lack of culturally competent providers is a significant barrier to quality health care for many LGBT people, particularly those who identify as transgender.”  But, as the article notes, this proposed future action simply hasn’t cut it.  At least, not yet.

This is where the law enters the discussion.  Recommendations from Health and Human Services are just that.  Recommendations.  What is the law doing to mandate so-called “culturally competent” health care delivery?  Frankly, nothing.

Take Massachusetts as an example.  The first state to legalize gay marriage and the 16th state to pass a gender identity equality bill governs physician licensing by statute and regulation, none of which require this cultural competency.  Medical school accreditation standards similarly do not require training on this specific type of bedside manner and patient care, though a couple of standards perhaps come close (see ED-22 and ED-23).

So, it might seem that the easy solution is to legally mandate queer-friendly interpersonal skills sensitivity training for health care professionals.  The question becomes — how?  How can the law mandate good interpersonal skills, and how could such a mandate be enforced?  Should medical malpractice lawsuits be filed based on a failure to engage with patients in a respectful and meaningful way?  In the case described in the NYT article, the patient outcome wasn’t one that would typically fall into the medical malpractice category; the catheter insertion procedure went well.  Assuming this were to become the default regulation, is it feasible given the time and money required to file a suit these days?  Would such a requirement run into conflict with conscience clauses?

The question boils down to whether the law can, and should, require sensitivity to gender identity and other non-hegemonic identities or classifications in health care delivery (and potentially in other spheres of social service systems as well).  This is a real life social problem, but to date, the law has not been a player.

I look forward to your comments.

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