Legal issues surrounding Bailey's book

Editor's note: The following correspondence between Australian WOMAN Network and Bailey's employer questions whether Bailey's activities violate Northwestern University's policies on inclusion and sexual harassment. Northwestern responded that they feel his actions fall outside this policy.

The authors also raise the issue of Northwestern's culpability in any damages arising from defamatory comments about transsexual women which are hosted on university websites. Northwestern holds the position that Bailey enjoys academic freedom and may publish with "full freedom."

11 May 2003
Dr Henry S Bienen, President
Dr Daniel Linzer, Dean of the College of Arts & Sciences
North-Western University
ILLINOIS USA

Dear Sirs

The Australian WOMAN Network is a lobby and health support group for women who have experienced the transsexual condition, their families, friends and supporters. We are the largest such group in this country and we have established a high degree of credibility with Government and the legal and medical professions with whom we work closely. We are represented on the Attorney-General's Ministerial Advisory Committee and the Equal Opportunity Commission Reference group and we are well known for our advocacy efforts on behalf of our membership.

Our reason for writing to you is to express our deep concern that an academic from your learned institution has published a book which has already been described as a concerted effort to defame all people with the transsexual condition and, by extension, the great majority of the transgender and gay communities as well. We refer, of course, to the book by Prof J M Bailey, "The Man Who Would Be Queen..." which has, very unfortunately, passed through the review processes of the National Academies of Sciences and been published by the NAP. You may read this at http://www.nap.edu/catalog/10530.html and thereby avoid contributing to Prof Bailey's royalties.

From the title, right through the dissertation on transsexualism, the material presented by Prof Bailey is distressing and offensive to people who have experienced the trauma of a phenotype which is opposite their brain sex. His description of us in terms of "effeminate homosexual men" and "autogynaephilic response" are crass and plainly unsupported by the overwhelming medical evidence which he chose to ignore completely. The vehemence of his attack on our condition and our motivation for rehabilitative surgery can only be described as deeply distressing and, with little doubt, intended to belittle and hurt us to the core. His work constitutes harassment and vilification of a highly marginalised minority will create an even more hostile public environment with which we will all have to contend.

There is a disturbing lack of science in Prof Bailey's approach to his topic. He has taken anecdotal evidence, collected in sleazy night spots in San Francisco from a very small sample of two small subsets of the so-called "transgender" population, transvestite prostitutes and effeminate gay drag queens, and has applied characteristics supposedly evident in these to a much larger and altogether different population comprising women of transsexual background. He has compared men with psychological conditions which are placed amongst the paraphelias with women who were born with a biological variation of sexual differentiation; an intersexual condition in which the phenotypical sex is opposite the neurological sex. He has completely ignored the last decade of medical research into the transsexual condition and the anecdotal evidence of the tens of thousands of us who have been assessed and treated over the last fifty years or more. In fact, he accuses us of lying about our reality when we reject his skewed conclusions.
You can access summaries of a great deal of the current medical viewpoint on transsexualism by looking at the recent cases in Australia and Florida which have held that a transsexual person has the right to a valid marriage in the sex they have affirmed though surgical and hormonal procedures:

http://www.familycourt.gov.au/judge/2001/html/rekevin_text.html and

http://www.nclrights.org/releases/kantaras022103.htm

The joint statement by 17 international experts at the International Symposium on Transsexualism hosted by the Gender Identity Research & Education Society (UK), which was accepted by the UK Parliamentary Inquiry into Transsexualism, gives further evidence on the neurological basis of transsexualism and can be accessed at: http://www.gires.org.uk/Web_Page_Assets/frontframeset.htm On this basis alone, Prof Bailey must surely be viewed as an embarrassment to an otherwise highly reputable institution?

We note that your University prides itself on its inclusionary attitude and that you have a very well-publicised policy against sexual harassment at: http://www.northwestern.edu/sexual-harassment/policy/index.html This policy defines sexual harassment, inter alia, as:

· Unnecessary and unwelcome references to various parts of the body

· Belittling remarks about a person's gender or sexual orientation

· Inappropriate sexual innuendoes or humor

· Offensive sexual graffiti, pictures, or posters

· E-mail and Internet use that violates this policy

We also note the undertaking that: "This administration is committed not only to broad-based educational efforts to address the issue of sexual assault on campus but also to aggressively pursuing disciplinary action against those who choose to violate the rights of others..."

We respectfully submit that the Bailey book very seriously contravenes this policy as is evidenced by the extent and ferocity of the responses being made to it by highly distressed individuals around the world. Even more seriously, however, Prof Bailey has chosen to assist in the marketing of his book by engaging in a round of promotional seminars at which his misplaced humour (vitriol) is causing even more concern, and has attempted to justify his stance by way of a website hosted by your university: http://www.psych.nwu.edu/psych/people/faculty/bailey/controversy.htm. You can gauge the reactions these latest efforts are receiving by reading the report published by Prof Joan Roughgarden at: http://ai.eecs.umich.edu/people/conway/TS/JOAN-ROUGHGARDEN-LETTER.html We suggest that a Department of Psychology should be interested not only in the science and art of psychology, but also the mental/emotional well-being of the community, both inside and outside the campus. Ungrounded, unscientific, sensationalistic smearing of an already marginalized community is inconsistent with this responsibility. Bailey's book is actually an act of sexual harassment against our entire community. A copy of this letter has therefore been sent to Ms Marcia Mahoney, Director of the Sex Harrassment Prevention Office at North-Western U.

Finally, we offer the view that the Northwestern University is vicariously liable for both Prof Bailey's actions in publishing his book and the pain, suffering and hurt to countless individuals flowing from that publication. In view of its pecuniary advantage, the university will undoubtedly be joined in the litigation which seems inevitable. Since the material is published not only in hard copy, but is also published on the internet, those legal actions may be instituted in legal jurisdictions other than the United States of America, such as Australia, in defamation where the onus is on the "publisher" to demonstrate that his material does not impugn or otherwise damage the reputation of a person or class of persons; in tort for damages in negligence and nervous shock; and in sex discrimination for harassment and (incitement of) vilification. Your counsel and public relations officers are therefore also provided with copies of this letter.

We trust you will commence an immediate investigation into Professor Bailey's publication and public statements and take appropriate action to mitigate the harm they have engendered. Your advice in the matter will be much appreciated.

Yours sincerely

Kate Clarke
Convenor/Webmistress

Karen Gurney
Asst Convenor/Advocate


Marcia Mahoney at Northwestern replied on 12 May 2003:

Ms. Gurney:

Thank you for your letter of May 11 concerning Professor Bailey's recently published book. I appreciate your position that the book is offensive and distasteful. As your complaint addresses the substance of Professor Bailey's research, however, it falls outside the ambit of our sexual harassment policy. Northwestern University's commitment to academic freedom provides that its professors are entitled to full freedom in research and in the publication of the results.

Thank you for bringing this to my attention. I hope the foregoing is helpful.

Marcia Mahoney
Marcia A. Mahoney
Special Assistant to the Provost
Director, Sexual Harassment Prevention Office
Northwestern University
Walter Annenberg Hall, Suite 140
2120 Campus Drive, Evanston, Illinois 60208
(847) 491-3745 (voice) (847) 491-2506 (facsimile)
m-mahoney5@northwestern.edu

Australian WOMAN Network responded that day:

Dear Ms Mahoney

As person who gained tertiary qualifications in both Chemistry and the Biological Sciences before taking up law, I respect the right of any researcher to be free and unfettered in their pursuit of knowledge. My concern is not with the substance of Professor Bailey's research, but of his publication which appears to have gone out of its way to be offensive and demeaning to people that true science now accepts are affected by nothing more sinister than an unusual variation in their biology - an intersexual condition.

In addition to his publication, however, we are also horrified by his reported demeanour and language on his current "lecture" tour. These suggest that Prof Bailey's language is misogynist, homophobic and transphobic and constitute vilification, which, if he attempted it in Australia, would see him held accountable.

As an adviser to our own Equal Opportunity Commission and our Attorney-General, I find it difficult to reconcile your response with my own experiences in academia where responsibility and accountability are not, and cannot, be abandoned in the name of independent research.

May I suggest you investigate what Prof Bailey has actually been saying in public, as an apparently esteemed faculty member of your University and reconsider your position for the good of the institution.

Thank you

Karen Gurney
Asst Convenor/Advocate