LEGALLY SPEAKING, IT DEPENDS: LGBTQ Part 2 – The BTQ et al.

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

Click to tweet this article to your friends and followers!

Continuing our LGBTQ issues discussion from where we left off in Part 1, we'll finish with the capital definitions, throwing in a few more just for good measure (to demonstrate how complex the issues really are) and then move into the societal and legal issues involved. We'll leave specific impacts and concerns related to the movie and television industry as well as hopes for the future for our last part.

The term bisexual in its simplest definition is easy enough to fathom. One whose preferences run to both sexes. But it is a global term that encompasses quite a bit more than seeming at first blush and therein lies some of the difficulties of language and assumptions in the matter. First, it assumes a bifurcated status, leaving out classifications such as third gender people (as referenced below) completely out of the spectrum. Second, it connotes an either/or simplicity – either you prefer one gender or you prefer both equally. There is a broad and sliding scale of desire for the attraction level of any bisexual person to one or the other sex and simple definitions pale against the truth of reality.

For many it is easy to assume that all bisexuals are indistinguishable from homosexuals in kind and are treated as one category. This belittles or ignores the actual different life difficulties that differentiate bisexuality from the other classifications.

The simplest that can be said with accuracy is that bisexuality means not exclusively attracted to one sex, as vague and incomplete a stipulation as that may be.

The preferred term, transgender (in most instances replacing the passé and more clinical term transsexual– unless you're singing along to The Rocky Horror Picture Show) was coined in the 70s to refer to one whose gender identity differs from their happenstantial or assigned biological sex at birth. It wasn't until the 1990s that the current term for non-transgender was adopted. Cisgender was created from the prefix cis-meaning “on the same side of” and gender meaning… well, gender. Both these terms transgender and cisgender are specific only to gender identity and not sexual preferences so transgendered and cisgendered individuals can be homosexual, heterosexual, bi or express any other sexual preferential class.

Though the current term for transgenders may be relatively recently adopted, they have been part of society (whether or not acknowledged) throughout history. For one example, they have been socially recognized as far back as the Kama Sutra period in ancient India. Though being recognized by a society and being accepted by it are not always the same thing. The class of individuals called hijra (more commonly self identified as khwaaja sira) in Pakistan and Bangladesh have recently been officially recognized by their governments as third gender. In 2014 in India transgender people were also given the legal status of third gender and are now a protected class.

The transcommunity should not be confused with cross-dressers, drag queens or kings, people who wear the clothing and may adopt affectations usually associated with an opposite gender from their own, or the transvestite, a somewhat clinical term describing those who cross dress for a sexual or erotic purpose. Where these individuals chose their actions for what it does for them, a transgender person does not choose. They just are.

And one is transgender regardless of whether they chose to transition or not, the term used to refer to the myriad of ways of moving from one gender presentation to another. Those ways can include any, all or none of the usual considerations, psychological consultation and preparation, hormone treatments, and reassignment surgery. It is a long journey with no right or wrong path and no necessary stops along the way. It is a very individualistic path to chose that which is most satisfying to the trans person. It can be daunting for the individual to chose the right path for themselves. Understanding and properly trained medical professionals are a great source of help, especially those that follow international guidelines such as those evolving through organizations such as the World Professional Association for Transgender Health WPATH and others to care best for the needs of those seeking transition as MTF (male to female) or transwoman or FTM (female to male) transman.

With the third gender movement politics and the international organizations geared for professionals, there is definitely clear evidence that there's a current, world wide movement towards recognition and protection of transgenders.

That leaves the, odd last letter in our abbreviation soup. It's a confusing issue for many and a question that comes up often in public discourse. The answer isn't universal, either. Some people use the Q to mean questioning for those who are uncertain as to their own orientation and are still figuring themselves out. Others allow the Q to stand for the historically derogatory and offensive term queer in an effort to take back the language and adopt it as a positive self labeled moniker. This technique has been used effectively throughout history to turn an oppressive use of language against a downtrodden class into a symbol of power and unity, muting the hate speech by defanging its voice. When used by the community, queer often is an umbrella term that encompasses all. You may have noticed that it is the term I have assumed the LGBTQ to include. I have made this choice because queer is the term used by my self-identified friends and family who fall into this category.

And many more

Whether you accept the umbrella terminology or not, there are many other classes of individuals that don't fall easily or at all under the above definitions. There are the androgynous, those who do not have a sexual component to their personality; the polyamorous, those whose sexuality is broadly defined and fluid; eunuchs and the castrated, those who either by choice or force have been physically or chemically removed from their sexual function; and the intersexed, those who have sexual anatomy or genetics that are more complex than the simplistic, scientific bifurcation usually referenced (no longer referred to by the old, offensive term hermaphrodite); to name just a few.

With so many variations and sliding scales of categories, how are you ever supposed to keep things straight? The simple answer is, you're not. It is up to the LGBTQ person to let you know who they are and how they wish to be addressed, if they so wish.

There is no “look” to sexuality. No such thing as “gaydar” and no tell-tale signs of someone's orientation. The true nature of each individual is personal. Assumptions can only cause trouble, embarrassment or worse. The proper course of action is to allow every person to be able to self identify that is, determine for themselves just who they are and decide what about their individual makeup they wish to share. Respect for each individual is key. But that should be our approach to every situation when you think about it.

It can be complex. As writers we need to know how to refer to individuals. The trip ups often come when dealing with pronouns. Which ones to use, say, when referring to someone in transition? Again the solution is to let that person determine how they wish to be referred to. Believe me, they have thought about it much more than you and have decided what feels right to them.

In the mean time there are cheats for writers. A recent trend is to use gender neutral language such as the third person singular application of “they” and “them.” It might wrangle some old English sticklers, but, it avoids mis-identifying the subject in a topic area very personal to them. You might have noticed I use that style in much of my writing here. It's good for a lot of purposes and otherwise awkward situations when you are unsure of the gender of the subject at issue.

How you address a person is an important, but, far from the most impactful issue they face.

One just needs to look to the headlines for daily examples of areas where LGBTQ community issues are facing social and legal turmoil. From topics as diverse as equal treatment in marriage, health care rights and access, employment benefits, the right to have and raise children and so much more the difficulties the LGBTQ community struggle with just to be treated the same as others must feel nearly insurmountable. In each arena brave people take a stand for the rights of not only themselves but of countless others throughout history who have suffered under similar inequity. Each fight could be an article unto itself. Every one a dramatic story to be told and an even more dramatic one to live. Considered collectively, they all harken to the desire to find equality, equity and fairness in treatment and respect. That's not too much to ask. But history has denied such respite for a long time.

The fact of a smaller part of society as a whole being treated with disdain, ridicule and hatred from another small part of society is an unfortunate recurring theme in most societies. The mistreatment of others because of just who they are is an inequity in the law and morally wrong (even though wrong headed, so called moral justifications are often claimed by the oppressors.) Historical imbalance in a land where everyone is supposed to be equal is a legal dilemma. One which the courts have often attempted to fix. When there is a clear and evident history of systemic and persistent inequity and violence against a particular class the courts have seen fit to establish a course of redress made available for that class. There is a small group of protected classes within the law that recognize that history has not been kind to certain classes of people and their ability to seek redress under the normal venues has been suppressed by the systemic nature of the oppression. Special laws have been created by legislatures and supported by the courts to give voice to those who otherwise might not be heard. These laws give extra teeth to standard laws when the offenses are targeted at these protected classes. Over time the classes of race, creed, color, religion, age and sexual orientation have been gathered for various levels of recognized protection because of the historical, societal wrongs committed against these groups.

But laws and society are slow to change. And politics and politicians aren't always on board with the changing times.

Unfortunately, there are a lot of recent examples of where politics have turned a deaf ear to the realities of the world we live in and attempted to turn back time to a more ignorant (and oppressive) era. And using the same common, communal facility as its focus as well. Public restrooms.

In a knee jerk response to a progressive anti-discrimination city ordinance passed in Charlotte, the Republican led legislature of North Carolina quickly drew up, debated and passed House Bill 2 (HB2) signed into state law by the governor quickly thereafter. The law has drawn some reaction.

Simply stated the law requires public facilities in the state, including schools and public buildings to restrict bathroom use to correspond with the biological sex indicated on a person's birth certificate. There is very little doubt this law was aimed directly at members of the LGBTQ society. Just searching for sound bites from the governor and politicians speaking on the subject bear this out, though they attempt to justify it. Just like those politicians decades ago attempted to justify a previous separate bathroom law. The debate could be raised here, but, it has already resounded in the initial court for all disputes.

Hollywood has started to sound a reply. Diverse groups of entertainers and performers have vowed to boycott the state such as Bruce Springsteen, Pearl Jam, Blue Man Group, etc. Other performers such as Cyndi Lauper have chosen a different response to the North Carolina Anti-Gay Bill. And the Federal government, through U.S. Attorney General Loretta Lynch, has uncharacteristically responded rapidly, strongly and eloquently.

Time will tell how society decides to fall on this and so many other matters affecting LGBTQ issues. As we stated in the first part of this article series, society changes over time. Where we end up at any one time will determine where we strive to go next.

Besides the coincidence that President Obama has declared June 2016 Lesbian, Gay Bisexual, and Transgender Pride Month (something I was unaware was going to happen when I started this series,) you may be wondering why I have chosen this topic for a current discussion on these pages. Script Magazine is traditionally geared toward writer needs and issues. How does this apply to what you do? I posit the following: writers write true stories. Understanding the realities in the world allow every writer to write better, more believable stories. Real people make such better characters. Understanding matters. Sure the subject matter is electric, exciting, exotic even. But it is also a reflection of real people with real lives and when we tell their stories, it behooves us to get them as right as we can, reflecting the humans behind the headlines.

Why now? Why wait? Look around. The world has been this way for as long as anyone can remember. It's time we all catch up to how things really are, don't you think?

Next time in the final part of this series we'll look at how Hollywood and the entertainment industry has treated the LGBTQ community on screen, behind the scenes and elsewhere. And we'll look to what hopes for the future lay ahead. If you ask what those may be, well, it depends.

Screenwriter Contracts DecodedUnderstand Common Screenwriting Contract Terms so
You can Sign Your Contract Confidently