Over a Quarter of a Million Served

250,000 unique visits. Over 380,000 page views.

If each reader had just contributed 2c per visit.... then it would have meant that they thought my blog would have been worth 2c to read! It would also have just about paid for my medical bills so far.

I'll try to do better in future. To be worth 2c, even if I don't actually get it.

And to those who have donated... I'm afraid that all that came in went out again. You see, there's people in far greater need than I am. By your donations, I reckon you've saved at least two lives, and made a real difference in a dozen more. Including my own.

Thanks!

Back to Square One

Just saw my endo, and we discussed my latest results. Another hypothesis exploded.
We have no idea why things went so weird in 2005.

We're back to square one. Either a recessive mutation of an unidentified type, or a really spectacular psycho-somatic reaction to total denial of primary transsexuality, with some peculiar sequelae.

I'm not saying I give up, but it looks like it might be decades before we find the answer.

Grand Turing

From the Grauniad:

Professor Kevin Warwick, a cyberneticist at the university, said: 'I would say now that machines are conscious, but in a machine-like way, just as you see a bat or a rat is conscious like a bat or rat, which is different from a human. I think the reason Alan Turing set this game up was that maybe to him consciousness was not that important; it's more the appearance of it, and this test is an important aspect of appearance.'

The six computer programs taking part in the test are called Alice, Brother Jerome, Elbot, Eugene Goostman, Jabberwacky and Ultra Hal. Their designers will be competing for an 18-carat gold medal and $100,000 offered by the Loebner Prize in Artificial Intelligence.

The test will be carried out by human 'interrogators', each sitting at a computer with a split screen: one half will be operated by an unseen human, the other by a program. The interrogators will then begin separate, simultaneous text-based conversations with both of them on any subjects they choose. After five minutes they will be asked to judge which is which. If they get it wrong, or are not sure, the program will have fooled them. According to Warwick, a program needs only to make 30 per cent or more of the interrogators unsure of its identity to be deemed as having passed the test, based on Turing's own criteria.

I had hopes, but having seen the mediocre performance of Ultra Hal, if the others are comparable, AI is still not ready for Prime Time.

KW: What is the subject, do you think?

Subject: What is the subject I wonder if I think?

No, it doesn't. Think, that is. It's a glorified chatbot. Try chatting with Eliza to see what I mean.

Today's Battle

Over at Christian forums. The usual, trying to inform rather than argue.

This is a long-term campaign, but I really think progress is being made. I've noticed a distinct change of tone over the years, and even more people supportive rather than rejecting.

Change has to involve the grass-roots, or it's a mere temporary patch.

When Worlds Collide

From the Daily Telegraph:

Two planets about 300 light years from Earth have slammed into each other recently, US astronomers say, the first time evidence of such a catastrophic collision has been seen by scientists.

Astronomers from the University of California, Los Angeles (UCLA) and the California Institute of Technology (CALTECH) said the crash involved two planets orbiting a star in the Aries constellation.

The collision was uncovered while astronomers were attempting to measure the star's age, and found an unusually large amount of dust orbiting the star.

"It's as if Earth and Venus collided with each other," said Benjamin Zuckerman, UCLA professor of physics and astronomy.

"Astronomers have never seen anything like this before. Apparently, major catastrophic collisions can take place in a fully mature planetary system.

This is not good news. Chaos Theory did strongly suggest the possibility that nice, stable, mature, not-rocking-the-boat solar systems could, sometimes, once in a blue moon have this happen. Systems like ours, in fact.

The odds that it would happen before the Sun turns into a Red Giant aren't high. And besides which, we already had our share when the Earth was new, and a planetary collision turned our place into a double planet system. Well, that's the best theory we have for the formation of the Moon.

The collision was an "ultimate extinction event" that would have wiped out any life on either planet in minutes, the report said.

I'm not sure of that - and I don't mean a technologically capable life-form escaping in spacecraft, either - though that possibility can't be entirely discounted either. No, I mean extremophiles - bacteria that live kilometres down in the rock.

Such a collision would lead to dust, debris, and even great chunks of rock being catapulted from the explosion. And they just might survive long enough to find a new home.

Tennessee State University astronomer Gregory Henry said scientists in the United States and France have long studied the stability of planetary orbits.

"Their computer models predict planetary motions into the distant future and they find a small probability for collisions of Mercury with Earth or Venus sometime in the next billion years or more," Henry said.

Prof Zuckerman noted, however, that collisions have occurred in our solar system's past.

"Many astronomers believe our moon was formed from the grazing collision of two planetary embryos, the young Earth and a body about the size of Mars, a crash that created tremendous debris, some of which condensed to form the moon and some of which went into orbit around the young sun," he said.

We need to hedge our bets. Not be stuck on a rock that, while a nice place to live, has no collision insurance.

IPSR - Another Case in Australia

From Transworld Surf (and how very appropriate)

The former world surfing champion Peter Drouyn has revealed he is to become a woman.

The 58-year-old Australian sports idol claims his male hormones have been draining from his body for the past eight years.

Gold Coast-born Peter said: “It hasn’t been intentional. It’s totally natural, with no medication or hormone therapies, no enhancements and no advice. It’s just happening.”

But he added that he always felt like a woman trapped in a man’s body

Oddly enough, I can believe that. Both parts, the transsexuality, and the natural change.

"Westerly Windina" is not my style as a new name, but I guess you have to be somewhat flamboyant to be a world-class surfer.

A less than sensitive view is provided by Channel 7's Today Tonight - Surfer turns into Marilyn Munroe (Yuk Yuk). You have to get the money for treatment somewhere, and I'm glad I was spared that kind of humiliation.

DevelopSpace

While the focus of this project is on tools that are relevant to space applications, space engineering has significant overlap with many other engineering disciplines, as such a significant number of the tools we describe will be relevant outside of the space arena.

Open Source Space Software. What's not to like?

Throwing the Book at Them

Three men charged with assaulting a transgender woman in Lowell in June 2007 pled guilty this week to charges of assault and battery for purpose of intimidation due to sexual orientation and civil rights violations. Middlesex District Attorney Gerry Leone’s office had urged Superior Court Judge James Lemire to sentence each of the men to one year in prison, but the judge instead sentenced each of the men, Jonathan Artis, Jules Ruggs, and Jeffrey Buchanan, all 20 years old and all from Lowell, to two years probation, 50 hours of community service, and diversity training.
...
The three men attacked the victim, Jenine Nickola, in the early morning hours of June 2, 2007, as she walked home on Bridge Street. They followed her, shouting and calling her "faggot." Nickola headed towards the nearby Centerville police precinct, but when she was 200 feet from the building the three men hit her in the head from behind and repeatedly assaulted her, continuing to shout slurs and telling her, "We don't like your kind in our neighborhood." The attack left her with severe lacerations to her lip and strained back muscles. Once the men left Nickola went to the police, who caught the three men about 20 minutes later.
...
Massachusetts hate crimes laws do not cover crimes motivated by gender identity or expression... Scott said Leone’s office was likely able to bring charges based on sexual orientation since the attackers shouted anti-gay slurs during the assault.

- Bay Windows.

Now if they'd just said "filthy tranny" instead of "faggot", then they would have gotten a lesser sentence. Perhaps a light tap on the wrist or a stern talking-to, instead of 50 hours of community service.

Although she was initially described in press statements by Leone’s office and in the press as a gay man targeted for his sexual orientation, Nickola appeared at a June 7 vigil in Lowell in response to the attacks, and she told her story to the press and identified herself as a transwoman. Despite her public identification as transgender Leoneís office has continued to describe her as a man targeted for his sexual orientation. Gunner Scott, executive director of Massachusetts Transgender Political Coalition (MTPC), said it was disappointing that Leone's office is not acknowledging her gender identity.
"As far as the DA’s office goes it sounds like they need training. ... I can only imagine how difficult it must be to work with the DA’s office when you’re not being respected with how you identify," said Scott.

Perhaps not even a tap on the wrist then.

I can't help wondering what would have happened if an African student had been targeted the same way, not even 100 yards from a police station. And if the attackers had shouted "Nigger!". I think that maybe we wouldn't have to read about it in a minority news outlet, and maybe the sentence might have been a little more severe. Just a bit. Mind you, it's only a hunch.

And in other news...


This death is now described as "suspicious", and Homicide detectives have been assigned to the case.

Murders of Transgendered people in the USA are still running at about once a fortnight. The majority are Black or Latina transwomen.

The Falcon has Flown

Falcon 1 Launch 4, anyway.

The bottom line : 420kg in a 185km circular LEO for $7.9 million. 350kg in a more useful Sun-Synchronous orbit at 800km (Though the Encyclopedia Astronautica has some slightly more ambitious figures). And for the really long-range missions...

...if budget is of primary concern, the Falcon 1/Falcon 1e can be employed for injection into a Highly Elliptical Orbit(HEO). A kick motor on the spacecraft can then provide the necessary delta‐v to complete the Trans Lunar trajectory.

That's from the Falcon Launch Vehicle Lunar Capability Guide. It works out as putting about 10kg on the moon, assuming a 40kg "kicker". That's with the vehicle just launched, which is optimised for LEO only. You really need the extended version (1e) for anything higher, and the planned, much larger (and 5 times the cost) Falcon 9 for Lunar exploration - and re-supply.

Of course, this is the first privately-developed orbital flight ever. Not bad, and when they get into series production, a very serious competitor indeed for launching LEOSats.

Congrats to the team for getting it so right on only the 4th try. This is not just a Big Deal, it's a very Big Deal Indeed.

Transphobia vs Misogyny : The effect on earnings

Well, this is a surprise.

These estimates imply that male-to-female respondents...lose about 31 percent of their earnings after their gender transition... Female-to-male respondents ...are estimated to gain about 10 percent in earnings following their gender transition...

What's so surprising? That misogyny has double the effect of transphobia. About 10% vs 5% - translating into a 20% and 10% pay difference respectively.

Someone going from Female (-10%) to Male (+10%) Would get a 20% pay rise.
Someone going from non-TS (+5%) to TS (-5%) would get a 10% pay cut.

So someone doing both - an FtoM transition - gets a 10% pay rise.

Someone going from Male (+10%) to Female (-10%) would get a 20% pay cut.
Someone going from non-TS to TS gets a 10% pay cut too - so someone doing both gets a 30% pay cut.

Yes, I know I'm assuming they're independent variables, and they're probably not. But as a back-of-the-envelope calculation, it's in the right ballpark.

Figures are from Before and After: Gender Transitions, Human Capital, and Workplace Experiences Schilt K, Wiswall M in The B.E. Journal of Economic Analysis & Policy

A Case of Homicide

As promised in a previous post, another amateur and amateurish comment on a legal case. This one in Greeley, Colorado.

The facts:
Angie Zapata, a transwoman age 18, died of blunt force trauma to the head by a person or persons unknown, in her flat, on July 16, 2008. Her body was found the next day.

On July 30, Allen Andrade was arrested in the Denver suburb of Thornton, where he lives. Police responding to a noise complaint said they found him in Zapata's 2003 PT Cruiser, which had been missing. He was arrested on existing warrants. Andrade has a lengthy record that includes attempt to commit first-degree criminal trespass, attempt to commit theft from a person, possession of a contraband, attempted escape and attempt to commit theft by receiving. He served time for each of the convictions.

Abndrade was also found to have used Angie's credit card.

From Denver News :

Andrade told investigators that he met Zapata through MocoSpace, a social networking Web site, and that they agreed to get together after exchanging contact over several days, according to an arrest affidavit released by Greeley police. The two met July 15 and spent the day together.

Andrade told investigators that Zapata performed oral sex on him but wouldn't let him touch her, according to the affidavit.

He said he also spent the night at Zapata's apartment, but in separate beds. The next day, Zapata left Andrade alone in her apartment, and Andrade noticed several photographs that led him to question Zapata's gender.

Andrade confronted Zapata when she got back. Zapata answered: "I am all woman."

He grabbed Zapata's crotch area, felt male genitalia and became angry, the affidavit states. He took a fire extinguisher off a shelf and struck Zapata twice in the head, telling investigators he thought he "killed it."
...
Andrade told investigators he covered Zapata with a blanket and started gathering evidence he thought might link him to the crime when he heard gurgling sounds and noticed Zapata was sitting up. That's when he picked up the fire extinguisher and hit her again, police said. He left the apartment and took her car, he said.

Note that we only have the alleged killer's statement in evidence of that. The actuality may have been quite different. From the Denver Post

Only when Andrade grabbed at Zapata's crotch did he discover the truth. But when she smiled at him and said, "I'm all woman," it drove an enraged Andrade to commit murder, attorney Annette Kundelius said.

"At best, this is a case about passion," Kundelius said. "When (Zapata) smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction."

She argued Thursday that the first-degree murder charge filed against Andrade for Zapata's murder be dropped to second-degree murder.

But Weld County District Judge Marcelo Kopcow ruled otherwise Thursday, citing evidence the 31-year-old Andrade killed Zapata with deliberation.

Andrade hit Zapata several times with a fire extinguisher after he confronted her about her transgender status, Kopcow said.

He said he also considered several statements Andrade allegedly made while in custody that showed his anger toward Zapata and gays in general, including Andrade referring to Zapata as "it."

When his girlfriend told him her cellphone was dying during a conversation with him, he said that was gay and "all gay things need to die," Tharp said.

Andrade also said that he was trying to put the murder behind him and there was "no use crying over spilled milk," Tharp said.

The charges Andrade faces are :

• first-degree murder after deliberation,
• felony motor vehicle theft,
• felony identity theft and
• bias-motivated crime

Let's see what the law actually states about each of these offences. So we need to refer to the Colorado Revised Statutes Section 18, the Criminal Code.

Let's start with Bias-Motivated Crime 18-9-121 and work up.

(2) A person commits a bias-motivated crime if, with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, national origin, physical or mental disability, or sexual orientation, he or she:
(a) Knowingly causes bodily injury to another person;
...
(5) For purposes of this section:
...
(b) "Sexual orientation" means a person's actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status.
...
(3) ...Commission of a bias-motivated crime as described in paragraph (a) of subsection (2) of this section is a class 5 felony;

I wouldn't convict on the facts. Apart from the accused's confession, there is no evidence at all that hatred was involved. From the accused statements, the victim was killed because they were perceived as homosexual, not for being a straight transgender. But there was no evidence that this killing was intended to intimidate or harass - unless you define murder as extreme harassment.

The essence of a "hate crime" is not a crime motivated by hate: it is a crime whose intent is to terrorise or whose effect can only reasonably be assumed to terrorise the segment that is hated. The wording of the Colorado legislation reflects the first but not the second. Of course the jury may disagree here, it is arguable either way. In any case, the Defence will argue that Angie wasn't killed merely because she appeared to be gay, but because she "duped" this poor innocent.

A Class 5 Felony is punishable by 1-3 years imprisonment with a parole period of 2 years.

Next, Identity Theft - 18-5-902.

(1) A person commits identity theft if he or she:

(a) Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;
...
(2) Identity theft is a class 4 felony.

This seems fairly straightforward and inconstestible on the evidence, though it doesn't preclude a more serious charge if there are other circumstances. More on that later.

A class 4 Felony is punishable by 2-6 years, with mandatory parole period of 3 years.

Aggravated Motor vehicle theft 18-4-409:

(2) A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and:
(a) Retains possession or control of the motor vehicle for more than twenty-four hours;
...
(3) Aggravated motor vehicle theft in the first degree is a:
(a) Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or less;

The book value of a second-hand 2003 PT Cruiser is about $10,000. Again, relatively simple and incontestible, but again, the unlawful taking may be a more serious crime than theft, depending on the circumstances.

Again, punishable by 2-6 years.

An alternate charge is that of Robbery 18-4-301, and I'll discuss that now.

(1) A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.

(2) Robbery is a class 4 felony.

This is where it gets murky, and beyond my meagre expertise. Here's some commentary on the elaborating caselaw:

Felony murder based on robbery precludes conviction for robbery. The defendant's conviction of the greater offense of felony murder, predicated as it is upon his killing of the robbery victim, precludes his simultaneous conviction of the lesser included offense of robbery. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Robbery conviction not precluded by conviction for murder of another after deliberation. Although a separate judgment of conviction for robbery may not simultaneously exist with a judgment of conviction for first degree murder predicated upon the killing of the robbery victim, there is no such impediment to the entry of both a judgment of conviction for first degree murder based upon the killing of another after deliberation and a separate judgment of conviction for the robbery of the same victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

"Robbery" in felony murder provision used in generic sense. The term "robbery", as used in the felony murder statute, is to be construed as meaning this type of felony in its generic sense, including all types of robbery as defined in the statutes. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

Any resulting death from robbery supports felony murder conviction. Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim's person or presence. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

Property is taken from the "presence of another" when it is so within the victim's reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Benton, 829 P.2d 451 (Colo. App. 1991); People v. Fox, 928 P.2d 820 (Colo. App. 1996); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

The question is... was the assault resulting in death "in the course of" the unlawful taking? That is a matter for a Jury to decide. Certainly bashing someone's head in, then coming back to finish them off would be force, and without this force having been used, the victim would have been able to retain her property. The Defence would then argue that the killing and the unlawful taking are separate acts, not the same "transaction".

Note that we only have the accused's statement to guide us as to what actually happened. He has a record of similar thefts, and it's possible that Angie came home at an inopportune moment, interrupting the theft. Had she not been transgendered, that would have been the only reasonable interpretation of the evidence.

In order to argue that the unlawful taking was not Robbery though, the Defence would have to argue that the unlawful taking was almost a victimless crime, a mere removal of property belonging to a deceased person's estate.

Hmmmm.... I don't think that argument would go down well. But the phase "in the course of" is key.

It all comes down to whether the Jury believes that the accused took any of Angie's possessions in the course of "removing the evidence", or afterwards. If the former, it is definitely one "transaction". If the latter, arguably two. And that will be determined by the accused's exact statement to the police.

Now let's look at the killing itself - manslaughter, 2nd degree murder, felony murder, or murder with deliberation.

First, manslaughter 18-3-104 :

(1) A person commits the crime of manslaughter if:
(a) Such person recklessly causes the death of another person; or
(b) Such person intentionally causes or aids another person to commit suicide.
(2) Manslaughter is a class 4 felony.

Beating someone's head in is hardly "reckless'. Coming back later to "finish them off" when it's apparent they're not quite dead yet certainly isn't. Not even the Defence tried to argue this at the pre-trial hearing. But of course, we must remember, this is all on the unsupported word of the accused.

Second, Murder in the second degree, 18-3-103, and this is where it gets tricky yet again.

(1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.
...
(3) (a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

Some explanatory notes:

Elements of murder in second degree concerning defendant's state of mind are: (1) That the death was more than merely a probable result of the defendant's actions; and (2) that the defendant was aware of the circumstances which made death practically certain. The first is an objective standard; the second, a subjective standard. People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978); People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979).
...
Subsection (3) sets forth the elements of provocation, which is a mitigating factor and not a separate crime or a lesser included offense of murder in the second degree. If proven, provocation is a statutory mitigating factor that will reduce a defendant's sentence for second degree murder, but it is not an element of a separate offense. Further, to secure a conviction of second degree murder, the prosecution must prove a lack of provocation beyond a reasonable doubt. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).

The general assembly intended to eliminate the offense of heat of passion manslaughter and create a single crime of second degree murder with two different felony levels by making provocation, or acting in the heat of passion, a factor in mitigation of second degree murder. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).

And here's a quote from an actual lawyer on the subject:

Colorado judges have decided that, in some cases, a provocation for which there is evidence is nonetheless not permissible and cannot be argued in court. For example ... in People v. Valdez (183 P.3d 720, Colo.App. 2008), the Colorado appeals court held that a provocation argument could be ruled out. Here's what happened:

The defendant drove to his wife's house, from whom he was separated, saw a car there of a friend of his whom he suspected was having sex with his wife. He broke into the basement, went out into the yard, picked up a metal pipe, re-entered the house, and grabbed a knife. He walked upstairs to the bedroom, hit the boyfriend in the face with the metal pipe, and stabbed him in the chest. Defendant then woke up his estranged wife and told her that her boyfriend was dead and that he was going to get rid of her, too. He said if he could not have her, nobody was going to have her. The boyfriend survived, and defendant was arrested.

Okay, wife having sex with friend of husband's - not a crime but nonetheless "provocation" within the meaning of the statute, satisfying all five elements (...the five elements of a provocation defense requires that the act resulting in death 1) be performed upon a sudden heat of passion, 2) caused by a serious and highly provoking act 3) of the intended victim, 4) affecting the defendant sufficiently to excite an irresistible passion 5) in a reasonable person....). The appeals court did not dispute this, but nonetheless held that the provocation defense was barred. The court said that where a person places himself in a position, by his own actions, to encounter the provoking act, then the provocation argument is barred. Thus, while the Cassels case seems to indicate that a provocation argument must be allowed no matter what, no matter how vile or prejudicial, that is not, in fact the law in Colorado.

The element of provocation that the accused alleges is twofold: first, that the alleged sexual act many hours before the killing was "deception"; and second, that it was only when he confirmed his suspicions by deliberately grabbing her crotch that he knew what had happened. It is at least arguable, and would be argued by the prosecution, that the accused by his own actions encountered the provoking act. Alternately, if the provoking act was the sexual encounter itself, then the overnight time interval was certainly enough for "the voice of reason and humanity to be heard."

This assumes that having a sexual encounter with a transsexual "in stealth" is by itself a provocation so very terrible that it would excite an irresistible passion in any reasonable person to commit homicide. And that I would argue against, but I am certainly not objective there. I would argue in fact that it is exactly the same as someone finding out the woman he had sex with is only "passing for white", or "didn't look Jewish".

Furthermore... how many "momentary lapses of reason" do you get? By the accused's own admission, he attempted to beat the victim to death. He then calmly went about "tidying up" and removing incriminating evidence. He then noticed the victim gurgling and feebly moving under the sheet he'd put over the body, so he hit her again to deliberately kill her. Though of course, we only have his word for this.

2nd degree murder after provocation is good for 6-16, with a parole period of 5 years. It would be 4-12, but it's increased because it's a Class 3 Felony involving violence.
2nd degree murder absent provocation results in 8-24, also with a parole period of 5 years.

Finally... and I'm sure you thought I'd never finish... let's look at Murder in the First Degree. 18-3-102. But even there, there are two possibilities - Felony Murder, and Murder after Deliberation.

(1) A person commits the crime of murder in the first degree if:
(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault ... and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone;

Murder in the First Degree is a class 1 Felony, and thus punishable by Life Imprisonment, or the Death penalty.

Basically, if the jury determines the killing and the unlawful taking were one transaction, it's Felony Murder, and thus Murder in the First Degree, with or without "deliberation".

No verdict other than first degree murder possible where the evidence overwhelmingly establishes the guilt of the defendant in a brutal and heartless assault and robbery committed upon the person of the deceased, and the defendant had a fair trial, one that was conducted in all respects pursuant to law. Ceja v. People, 142 Colo. 447, 351 P.2d 271 (1960).

Where murder is committed in the perpetration or attempt to perpetrate one of the felonies specified in this section, there is only one degree of murder, namely, murder of the first degree. If the uncontradicted evidence is to the effect that murder was committed in one of the ways specified above, and in no other way, the question of second degree murder is not in the case, and the defendant should be found guilty of murder of the first degree or acquitted; there is no middle course. Jones v. People, 93 Colo. 282, 26 P.2d 103 (1933); Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L.Ed.2d 70 (1960

So why was the accused not charged with Robbery? Because as stated before,

Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge.

Furthermore, Felony Murder with Deliberation is properly charged as Murder with Deliberation.

Murder after deliberation and felony murder are not separate and independent offenses, but only ways in which criminal liability for first degree murder may be charged and prosecuted. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Brown, 731 P.2d 763 (Colo. App. 1986).

Unlawful killing followed by Robbery as part of the same "transaction" is treated the same way as if the events were concomittant.

Sequence of events is irrelevant as long as sufficient evidence is produced to show that a felony was committed by defendant and that a death occurred during the commission of that felony. People v. Braxton, 807 P.2d 1214 (Colo. App. 1990).

The Defence will argue that the second assault was "on impulse" even if not provoked. They may argue that the cause of Death was the first assault, not the "coup de grace", though I don't think that will fly, for even if the first wounds would have been mortal, the second ones caused an earlier mortality.

The Prosecution will attempt to prove beyond reasonable doubt that the second, deadly, assault could only be construed as being part of the "tidying up" process the accused was involved in. Making sure there were no witnesses to testify. And thus an unplanned, but deliberate act.

Time is not essential if there was a design and determination to kill formed in the mind of the defendant previous to or at the time the mortal wound was given. Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895).

The element of deliberation requires that the decision to commit the act is made after the exercise of reflection and judgment concerning the act; however, the length of time required for deliberation need not be long. People v. District Court, 779 P.2d 385 (Colo. 1989).

Now there may be other evidence too. For example, an examination of computer forensic evidence could show that the accused already knew of the victim's status before he met her - which would not merely blow apart any "provocation" defence, but strongly indicate that he went in with the intention to commit theft, as he had done in the past. And when interrupted, killed the victim. From Rocky Mountain News :

"She was always happy," said Alicia Portillo, one of Angie's friends. "She loved music. She didn't care what people thought of her. She always just wanted to be who she was, and that was female, and to be loved."

Portillo said Zapata's courage helped her with her own identity as a lesbian.

"Angie gave me the power to not care what people thought of me," Portillo said.

There's evidence Angie didn't try to hide, you see.

The Defence will be hoping to gain a Class 3 Felony result for the killing - 2nd Degree Murder after provocation - but won't be able to argue that the theft convictions (which will probably be pled guilty to) are part of the same "transaction". So the sentences for the thefts may be served concurrently with each other, but consecutively with the murder penalty. Unless they get an exceedingly sympathetic Judge. In that case, he gets out in 6 years, with another 5 years on parole.

An unsympathetic Judge would give him 18 years, with only the two theft charges concurrent with each other, plus 5 years on parole. Given the heinous nature of the assault, this would not surprise me. Except the victim was transsexual, so maybe 6 isn't unlikely after all. The average tariff is 8 - but parole before then.

The Prosecution would go for Murder One, and Life without parole. Whether with deliberation or Felony murder is immaterial. Failing that, 2nd degree murder without provocation, and go for a maximum sentence. 24 years, plus another 3 for the thefts.

Of course... I Am Not A Lawyer. So bear that in mind too. And this is the Law, not Justice.

China's Triple Space Success

From The Australian :

Mission commander Zhai Zhigang left the Shenzhou VII spacecraft at 4.43pm Beijing time (6.43pm AEST) to float in orbit for just under 15 minutes, making China the third country to complete a space walk after the United States and the former Soviet Union.
...
The space walk, broadcast live on television, was the highlight of the 68-hour voyage - China's third manned foray into space - and considered an important step towards building a space station, China's next major ambition in space.
...
Cdr Zhai waved a small Chinese flag shortly after climbing out of the spacecraft, 343km over the Earth.

Tethered to the craft with two safety wires, Cdr Zhai, 41, slowly moved towards a test sample of solid lubricant outside the module, Xinhua news agency said.

He took the sample and handed it to fellow astronaut Liu Boming, who stayed in the module and closely monitored Cdr Zhai's moves.

The move was a drill intended to replicate the type of task future space walkers will have to perform.

A fire alert heard during the live transmission of the space walk turned out to be a mistake in one of the sensors, Mr Wang said.

"To be frank, at that very moment, many of us felt a little bit concerned," he said.

But after finding out the alarm came from an area outside where Cdr Zhai was working, he said they relaxed.

As part of China's space program, two more unmanned craft will be launched by 2010, as well as another manned spaceship with a crew of three to start work on the lab or space station, according to the China Daily.

And from the ABC:

China's three astronauts have landed safely back on Earth after a challenging voyage, including a space walk, that showcased the country's technological mastery and put it one step closer to the Moon.

Spacewalker Zhai Zhigang and two other astronauts on board the Shenzhou VII landed around 5.40 pm (local time) on the steppes of northern Inner Mongolia region, where helicopters with crews trained in search and rescue were on stand-by.
...
It was China's third manned space mission. The ability to space walk is key to a longer-term goal of assembling a space lab and then a larger space station, and maybe one day making a landing on the moon.

The fast-growing Asian power wants to be sure of a say in the future use of space and its resources, and its space program has come a long way since late leader Mao Zedong lamented that China could not even launch a potato into space.

Now, some armchair analysis:

They were confident enough to broadcast the spacewalk live. And if you compare the pictures with what the US did in its first spacewalk with Gemini IV in 1965 - an event I remember - it was no umbilically-connected bespoke suit either. It was autonomous, just the thing you need in space construction. In 1965, the US had yet to put a 3-man crew into space. And needless to remind everyone, 4 years later they were on the Moon.

The Flag is a nice "Hurray For Us!" bit, but it also proves another thing. If one can manipulate a flag, one can manipulate a tool such as a spanner. It tests the gloves' freedom of movement. This was no mere "stunt", despite appearances. It was the first qualification test of gear they intend to use later.

Now if I were in charge of the Chinese space program... I'd be doing much the same. Some more uncrewed launches of the Shenzhou to work out the inevitable bugs. Development of a robotic moon lander, and an overpowered "kicker" to get it into Lunar orbit. Perhaps a permanent constellation of lunar satellites for communications and survey. More work on a space station and assembly point in LEO - Low Earth Orbit.

I wouldn't try developing a Saturn-V class behemoth to launch everything at once. Instead I'd have 3 launches: one for the lander, one for the "kicker", and one for the "people locker", the Shenzhou capsule. Stuff put in orbit does degrade due to exposure to vacuum, and lubricants in particular need a lot of work. But a few months in orbital storage should be safe, and if anything goes wrong, a backup can be flown instead. A single launch failure does not mean a complete mission scrub.

Assemble the stack, kicker, lander, and capsule in orbit. Do an integration test, a lunar orbit and return with the lot, possibly uncrewed at first. Then a landing.

But with such a modular system, with spares, no need to stop there. The same system can be used to land habitats, supplies, and a permanent base established using existing, proven, reliable hardware. And it's a lot cheaper and easier to build than honking great boosters. Just the kind of thing you want when you're the only team in the competition, and you can take your time and do things right. When you're not into space spectaculars, but colonisation in the long term. And that is not small potatoes.

Alleys Blind and Sighted

A common polymorphism of the SRD5A2 gene and transsexualism. Bentz EK, Schneeberger C, Hefler LA, van Trotsenburg M, Kaufmann U, Huber JC, Tempfer CB. Reprod Sci. 2007 Oct;14(7):705-9.

The relation between genetic variation of the androgen metabolism and transsexualism is unknown. In a case-control study of 100 male-to-female (MtF) transsexuals, 47 female-to-male (FtM) transsexuals, and 1670 controls, the authors assess allele and genotype frequencies of the steroid 5-alpha reductase (SRD5A2) Val89Leu polymorphism using polymerase chain reaction. Allele and genotype frequencies are not significantly different between MtF transsexuals and male controls
...
Allele and genotype frequencies are also not significantly different between FtM transsexuals and female controls
...
Of note, there is no gender-specific genotype distribution among controls. The SRD5A2 Val89Leu SNP is not associated with transsexualism, refuting SRD5A2 as a candidate gene of transsexualism.

As they say in the Classics, Bugger.

A polymorphism of the CYP17 gene related to sex steroid metabolism is associated with female-to-male but not male-to-female transsexualism Bentz E, Hefler L, Kaufmann U, Huber J, Kolbus A, Tempfer C Fertility and Sterility , Volume 90 , Issue 1 , Pages 56 - 59

OBJECTIVE: To assess the association between transsexualism and allele and genotype frequencies of the common cytochrome P450 (CYP) 17 -34 T>C single nucleotide polymorphism (SNP). DESIGN: Case-control study. SETTING: Academic research institution. PATIENT(S): 102 male-to-female (MtF) and 49 female-to-male (FtM) transsexuals, 756 male controls, and 915 female controls.
...
The MtF transsexuals had an allele distribution equivalent to male controls, whereas FtM transsexuals did not follow the gender-specific allele distribution of female controls but rather had an allele distribution equivalent to MtF transsexuals and male controls. CONCLUSION(S): These data support CYP17 as a candidate gene of FtM transsexualism and indicate that loss of a female-specific CYP17 T -34C allele distribution pattern is associated with FtM transsexualism.

See also New Scientist on the subject.

While there are many women with the variant who are not transsexual and many FtM transsexuals who lack it, the finding raises the possibility that the variant makes women more likely to feel that their bodies are of the wrong sex, and that this is a result of their brains having been exposed to higher than average levels of sex hormones during development.

"It may increase the likelihood that people will become transsexual," says Tempfer. But he stresses that their cultural environment is also important.

"The present study found that a mutant gene that ultimately results in higher testosterone levels is overrepresented in female-to male transsexualism, says Mikael Landén of the Karolinska Institute in Stockholm, Sweden.

"This is in line with what we previously know about masculinisation of the brain and is therefore less likely to be a chance finding", he says. "Hence, the study is important and adds to the notion that gender identity is influenced by sex hormones early in life, and that certain gene combinations make individuals more vulnerable to aberrant effects."

That would be in accordance with the known effects of DES - and Thalidomide. For Thalidomide to cause "aberrant effects", there must be a genetic pre-disposition, which is why only 1 in 10 were affected. We know that only 1 in 5 "aberrant effects" happen after DES exposure in the first trimester, strongly suggestive of a genetic predisposition being required too.

More pieces of the puzzle. And negative results, pruning the possibility-tree, are just as valuable as the occasional "find".

In summary, the model we now have is:

1. Hormones and/or gene sequences (not necessarily related to "sex chromosomes", but usually) cause a pre-natal pre-determined pre-disposition for later brain development.
2. This development leads to emotional and thinking patterns that usually (not always) result in solid gender identity formation, in accordance with Diamond's Biased-Interaction model.
3. Later still, both gross and fine structures of the brain differentiate to such an extent that they're detectable, caused by the same pre-natal factors.

Australian Human Rights Commission Proposal

The original is at the HRC's Human Rights Blog. I'm quoting it in full here because, quite frankly, my blog has more exposure, worldwide. And I think people outside Australia should know about this:


Introduction

The Commission’s Sex Files project was established to conduct research and consult with the sex and gender diverse community in Australia on the issue of legal recognition of sex in documents and government records.

During the Commission’s project, members of the sex and gender diverse community raised concerns about the legal recognition of sex, particularly in relation to the ability of a person to change the sex recorded on their birth certificate. The Commission has been told that a desire to identify legally as a particular sex may be due to psychological sex or gender identity reasons.

This document outlines proposed reform to the legal recognition of sex in Australia. Its purpose is to stimulate discussion and input to assist in shaping the Commission’s reform agenda in relation to legal recognition of sex. The Commission will also seek further input from the sex and gender diverse community on the details of the proposed reform in due course.

What is the identification system in Australia and how does it effect people who are sex or gender diverse?

Australia has a common framework for confirming and protecting the identity of its citizens. This framework classifies types of official documentation as evidence of a person’s identity. Information about sex or gender is an important component of a person’s identity. Most official documents and records contain information about a person’s sex. However, some documents and records contain information about gender not sex.

The most important identity documents are known as cardinal documents, which are seen as the most trusted evidence of identity and citizenship. Usually cardinal documents contain information about a person’s sex. For persons born in Australia, cardinal documents are birth certificates or name change certificates. For persons not born in Australia, cardinal documents are citizenship certificates or the information contained in the database held by the Department of Immigration and Citizenship.

People who are sex or gender diverse may seek to change the information that is recorded on these cardinal documents and records. Once those cardinal documents are changed, a cardinal document can be used to amend the sex or gender noted on other documents and records.

However, there are currently some significant limitations. Reform of the process for changing cardinal documents and other related areas dealing with gender-identifying documents and records would enhance the rights of the sex or gender diverse community to identify as a particular sex.

What is the current system for changing information on cardinal documents?

The current system by which a person can amend a cardinal document will depend on whether that person was born in Australia or elsewhere. Changing a cardinal document is important as it provides an official identity and enables the alteration of other documents and records.

For a person born in Australia, state and territory legislation enables a person to change their legal sex on their birth certificate if they satisfy certain criteria. Different processes exist depending on the state or territory, although throughout Australia certain categories of people who are sex and gender diverse are excluded from accessing those processes.

For a person not born in Australia, the process for changing information on a citizenship certificate or in immigration records will depend on several factors. Some of those factors include when and where the person underwent sex affirmation surgery.

The current system generally excludes:

• married persons
• persons who have not undergone genital surgery or other sex affirmation surgery
• persons who have undergone genital or other sex affirmation surgery overseas
• children and young people under 18, and
• persons who wish to be identified as intersex.

The key reform features for the legal recognition of sex

In order for persons to legally identify as a particular sex, several reforms to the current system for altering documents and records would be useful. The main focus of the reform is to ensure that cardinal documents and records can be altered to appropriately reflect the sex with which the person identifies.

The key features of the reform proposal being developed by the Commission are as follows:

1. Married persons: a person’s status as married would not impact on whether a person can request a change in sex.
2. Persons who have not undergone sex affirmation surgery: a person who cannot or chooses not to undergo surgery would not be automatically ineligible to request a change in their legal sex. ^{Note 1}
3. Persons who undergo sex affirmation surgery overseas: a person who undergoes sex affirmation surgery overseas would be able to have that change appropriately recognised, without necessarily requiring supporting documentation from the overseas surgeon who performed the procedure.
4. Children and young people: children, young people and their parents would be able to seek a birth certificate and passport that match the identity of the child or young person.
5. Recognition of intersex: persons who cannot or do not identify as either male or female would be able to choose to be identified on their birth certificate and passport as intersex.
6. Centralised and uniform system: a central body would be created with the function of co-ordinating and facilitating changes of sex in official documents and records. In addition, or in the alternative, state, territory and federal processes would be made consistent in order for persons who seek to identify as a particular sex to be treated equally.
7. Clarity in definitions: current Australian law uses different terminology and definitions for persons who require their sex to be legally recognised. There is debate regarding the meaning of terminology such as transsexual, transgender and intersex. Reform would focus on the process for changing legal sex rather than seeking to define persons. This will promote a more inclusive system. ^{Note 2}

Who would be able to request a change in sex under the proposed system?

Under the proposed reform, a request for a change in sex could be made by a person who:

• is 18 or above, and
• is an Australian citizen or permanent resident of Australia, and
• has undergone or is undergoing ‘sex affirmation treatment’, and
• seeks to be permanently recognised as another sex.

Under the proposed reform, the parent(s) of a child or the guardian of a child could also make a request for a change in sex on behalf of a child who:

• is under 18, and
• is an Australian citizen or permanent resident of Australia, and
• has undergone or is undergoing ‘sex affirmation treatment’, and
• seeks to be permanently recognised as another sex.

The definition of ‘sex affirmation treatment’ under the proposed reforms would mean a surgical procedure or medical treatment to alter the sexual characteristics of a person. Alteration of genitals or reproductive organs would not be required to satisfy this definition.

Will the proposed system provide for an option to identify as intersex?

Under the proposed reforms a request to be indentified as intersex could be made by a person who:

• is an Australian citizen or permanent resident of Australia, and
• seeks to be permanently recognised as intersex.

The definition of ‘sex’ in the proposed reforms would mean the attribute of male, female or intersex.

Who would determine whether a change in sex is accepted under the proposed system?

The preferred model would include the establishment of a national board as part of the proposed reforms.

Appropriate appointments to the board could be outlined in legislation. For example, legislation could provide that the board include a person with a transsexual or intersex condition and a medical specialist working in the area of sex and gender diversity.

Legislation would provide the national board with functions to liaise with other departments to change records, including state/territory birth registries and to provide advice and publicly available information about the policies and procedures concerning the legal recognition of sex. The board would also have the function of receiving and determining applications for official recognition of a change in sex.

If a national board is not created, a uniform scheme could still operate with determinations about sex made by state/territory births registries ^{Note 3} , state/territory magistrate courts ^{Note 4} or a specialist board established at the state/territory level ^{Note 5}.

What documents would be required to support a request for a change in sex under the proposed system?

Legislation would outline what documents are needed to support the request of a change in sex under the proposed reforms.

For example, legislation could state that a request for a change in sex must be supported by:

• one statutory declaration by a doctor or medical practitioner stating that a person has undergone or is undergoing sex affirmation treatment, and
• one statutory declaration from the person requesting the recognition of sex that they identify as a particular sex and intend to do so permanently. In the case of a child and depending on the age of the child, the legislation could stipulate that the parent(s) or guardian must make a statutory declaration in relation to the child’s desire to identify as particular sex.

Legislation could also outline different supporting documents for a request to identify as intersex.


How would documents and records other than cardinal documents be changed under the proposed system?

The national board as described above would be tasked with assisting the alteration of other documents and records.

The national board could also advise on inconsistent policies and procedures and any future reform if necessary.


How would the proposed reforms be implemented?

In order to support these reform features, a combination of legislative and policy reform would be necessary. Harmonisation of state, territory and federal systems would also be required to ensure that the systems were consistent and streamlined.
Legislative reform could occur either through the enactment of federal legislation or by uniform state/territory legislation.

Notes:

1. The Commission notes that views and opinions vary on the necessity of surgery to request a legal reassignment of sex. The Commission has heard from people who require or required psychological and anatomical harmony achieved through surgery to alleviate their condition. For others surgery is not required for a person to live, identify and present as a particular sex. The Commission acknowledges that access to affordable sex affirmation treatment is of concern to many in the sex and gender diverse community. The Commission also believes that a person who genuinely lives as a member of a particular sex should not be prevented from legal recognition on the basis that they have not undergone genital or reproductive surgeries alone.

2. Much of the research and consultation conducted by the Commission during the sex and gender diversity project has focused on the issue of terminology. The Commission will use this research to determine the use of affirmative language in any reform proposals.

3. As currently occurs in some states/territories in Australia.

4. As currently occurs in South Australia.

5. State/territory specialist boards could be modelled on the existing Western Australian Gender Recognition Board.

Comment

Australia has a Constitution that borrows heavily from the US model. It is a Federation of States and Territories, each with their own legislative framework. The main difference is that Marriage is a Commonwealth (ie Federal) issue, not a State one.

This document could be useful as a framework for a similar home-grown made-in-the-USA solution.

I Am Not A Lawyer

IANAL... but for the second time, I'm going to give an amateur (and no doubt amnateurish) analysis of a legal case. A Civil case. And not even in Australia, but the USA, and in different jurisdictions, yet.

Well, one's reach should always exceed one's grasp. If I'm going to be ambitious and make a public spectacle of myself, no point in half measures.

The case has been adjudicated, though may be appealed. It's the case of Colonel Diane Schroer, US Army (Retd) vs the Library of Congress, as I've blogged about before.

The transcript of the judgement is available, and I suggest you read it. There have been many excellent analyses by legal professionals (and some not so wonderful ones by non-legal bloggers). The best analysis I've seen is by a TS Employment Law expert, Assoc. Prof Jillian T. Weiss. I'll just add my own comments, amplifying hers.

The facts: The Library of Congress offered Col Schroer a job, a position that was really important from a national security viewpoint. Basically the LOC's "guru" on International terrorism, advising military and political leaders of the highest level. Col. Schroer was deemed by far the best candidate. I'll quote her own words in testimony before a Congressional Committee to show why:

I served 16 years in Special Forces including tours as a detachment commander, company commander, and battalion commander, accumulating 450 parachute jumps. I participated in combat operations in Panama and Haiti as well as missions in the Middle East, Central America, Africa, and Europe. Additionally, I initiated humanitarian demining operations in Namibia, Rwanda, Mozambique, Botswana, Zambia, and Zimbabwe.

As the Senior Assessment Director, I orchestrated the Program Objective Memorandum or “POM” for US Special Operations Command, reviewing 5,000 programs covering all aspects of Special Operations for four years. I knew every unit, piece of equipment, operation, exercise, development program, and construction project; I knew where every dollar was supposed to go and how it was spent.

Following the attacks on 9/11, I was selected to organize and direct a classified 120-person interagency organization responsible for all Department of Defense operations against the country’s most significant terrorist threats and all long-term planning for the Global War on Terrorism. After almost two years of successful operations, with 25 years in the U.S. Army, I retired in January 2004.

Since my retirement, I have been intimately involved in Homeland Security, Critical Infrastructure Protection, and Maritime High-Risk Counterterrorism Operations.

You can see why they chose Colonel Schroer. The record of experience was unmatched.

But then Colonel Schroer told her new employer - a verbal contract had already been entered into - that she was transitioning, and thought it would be best if she started her new position as Diane, not David. There were still many months before she'd be taking up the position anyway.

Instant Panic and Consternation. Followed immediately, the next day, by recension of the employment contract.

Various excuses were offered in the court case that followed. That Col Schroers credibility with clients would be damaged (though she gave references, and they didn't bother checking with them). That she'd need as new security clearance (though they didn't follow their own procedures to check this). That she was untrustworthy (though they commended her for her honesty). That the medical aspects of transition would somehow interfere with her work (though they didn't inquire about that, merely assumed it).

But basically, they contended that discriminating against someone who was transsexual was not illegal. They had a point, in my opinion. But the judge disagreed.

Justice was served. And this is a big deal, not so much because it affects a lot of transpeople - it doesn't - but because of the arguments the Judge used. Some of which I don't know how he could express with a straight face. I couldn't.

This was about Transphobia, pure and simple. But it required some creative and unreasonable (IMHO) interpretation of the law for justice to be served.

Remember, this is only a District Court, not a Circuit Court. And I'll quote from the Judgement:

...the Seventh Circuit held that discrimination based on sex means only that "it is unlawful to discriminate against women because they are women and against men because they are men."

The Ninth Circuit took a similar approach, holding that Title VII did not extend protection to transsexuals because Congress's "manifest purpose" in enacting the statute was only "to ensure that men and women are treated equally."More recently, the Tenth Circuit has also held that because "sex" under Title VII means nothing more than "male and female," the statute only extends protection to transsexual employees "if they are discriminated against because they are male or because they are female."

The Judge had to say, in effect, that all three circuits were full of it in order to rule as he did.

And he did it by adducing a theory of law that is only espoused by the most Arch of Arch-Conservatives - that the plain letter of the law is all, and intent is meaningless.

It is a Judo argument, turning their own words against them. It's also the direction the most Right-Wing of the El Supremos are steering the law, much to my discomfort. I'm right-wing, but not that right-wing.

Oh, but it gets better.

The Library asserts that the introduction and nonpassage of H.R. 2015 and H.R. 3686 shows that transsexuals are not currently covered by Title VII and also that Congress is content with the status quo. However, as Schroer points out, another reasonable interpretation of that legislative non-history is that some Members of Congress believe that the Ulane court and others have interpreted "sex" in an unduly narrow manner, that Title VII means what it says, and that the statute requires, not amendment, but only correct interpretation.

When I saw that, I laughed out loud. Not just chuckles either, tears were streaming down my face.

Such a contention would only be "reasonable" - being defined as "not certainly known to be completely impossible" - in a court of law.

Does anyone seriously believe that a single congresscritter who voted against ENDA did so purely because they thought it was un-necessary, that trans-people were already protected? Does anyone believe that a single congresscritter who voted for a Trans-Exclusive ENDA that only covered Gays did so because Trans people didn't need the protection?

If so, I have this wonderful matching Harbour Bridge and Opera House in Sydney to sell you. Only used by a Little Old Lady from Parramatta. I'll throw in Tasmania for free.

Even those who argued this point in an attempt to justify Trans-Exclusion in ENDA did so with no enthusiasm. In view of the decisions by the Seventh, Ninth and Tenth circuits, it was too self-evidently absurd, and they soon stopped trying to argue the point. It was all about Pragmatism, not Principle, "Incrementalism".

The Judge is a very, very clever jurist. By giving the reasons he did, those conservative judges in other jurisdictions are caught in a zugzwang. They must either affirm conservative principles, and abide by the strict letter of the law, or appear to be one of those terrible liberal "judicial activists" they fulminate against. This is Judicial Judo at its finest. More liberal judges will just have to try to keep a straight face as they give their oh-so-conservative judgements that finally dispense, rather than dispense with, Justice.

Coming Up : another case, this one criminal. And involving Colorado Law.

UPDATE : This is what the differently-sane people at The Traditional Values Coalition said.

She-Male Wins Lawsuit Against Library Of Congress

As an aside, "She-Male" is a term denoting a pornographic transgender performer, and is only used by pornographers and the fans of pornography.

September 25, 2008 – Former Special Forces officer David Schroer, who now calls himself Diane, has won a federal lawsuit against the Library of Congress. David had been offered a job with the Library of Congress in 2005, but the offer was withdrawn after his potential employer learned that he was going to have a sex-change operation. He had interviewed for the job as a man, but then told them he was going to come to work as a woman.
...
...
Schroer’s Political Agenda

Judge Robertson’s claim that the Library of Congress violated Title VII of the 1964 civil rights act by not hiring Schroer is incorrect – and judicial activism. Title VII only addresses the issue of males and females – not confused individuals who think they’re the opposite sex. Robertson’s use of this section is illegitimate and should be appealed to a higher court.

A person who thinks he’s the opposite sex is medically diagnosed as having Gender Dysphoria, which is still listed as a mental disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). A person who wears opposite sex clothing has a mental illness described as transvestic fetishism in the DSM.

There is currently no federal law in effect that provides cross-dressers, transsexuals, drag queens, or she-males federally protected class status. However, efforts have been underway in Congress for years to pass legislation doing this. The brief filed by the Library of Congress in this case points out that Title VII does not protect transgendered persons from discrimination.

One of those laws is the Employment Non-Discrimination Act (ENDA), which has been blocked from passage by the aggressive work of TVC. ENDA originally contained protections for “gender identity” but was stripped from the bill by homosexual Barney Frank in order to get it passed.

Pro-homosexual legislator Robert Andrews (D-NJ) held a hearing in July 2008 featuring a panel of so-called “transgendered” individuals – including David Schroer who described his lawsuit against the Library of Congress. TVC staff attended this hearing and made videos available of the testimonies of these sexually confused individuals on the website.

By providing special legal protections in the law for transsexuals, homosexuals, and bisexuals, Congress will be opening up a pandora’s box to also “protect” 30 different sexual orientations listed in the DSM.

There's currently a debate within both the American Psychiatric Association and American Psychological Association as to whether the classification of GID as a "mental disorder" is warranted. On one hand, it's a convenient way of encoding the diagnosis of a medical syndrome - similar to the encoding of the distress suffered by rape victims. On the other hand, it's been claimed that it stigmatises those with it, and leads to persecution by ignorant bigots. This is exhibit A for the latter proposition.

It's more important to some that they be allowed to persist in their persecution than that they win the War on Terror. And no lie, no untruth, no malicious libel is too odious in such a "worthy" cause.

They're a lot like many on the Far Left in that respect. Blair's Law in action.

The notion of far right and far left groups allying with extremist Islamists is sometimes called "Blair's Law" ("the ongoing process by which the world's multiple idiocies are becoming one giant, useless force") by conservative and libertarian bloggers

And I, no matter what changes I may have been through, have always been, and remain, a most Conservative Blogger.

The Next Step in the Long March

As I blogged a few weeks ago, China's next step in the long march into space is the launch of a 3-man spacecraft. They have now taken that step.

From Xinhua

BEIJING, Sept. 25 (Xinhua) -- Three Chinese taikonauts who blasted off on the Shenzhou-7 spacecraft told the ground control center that they felt "physically sound" in the first few minutes of the flight.

The space voyager took off at 9:10 p.m. on Thursday from the Jiuquan Satellite Launch Center with leaders including President Hu Jintao present seeing off the taikonauts -- Zhai Zhigang, Liu Boming and Jing Haipeng.

"The solar panel has unfolded and we feel well," one of the crew members told the Beijing control center.

The Shenzhou-7 mission, featuring a spacewalk, is China's third manned spaceflight.

A successful test with 1 man, then with two, then (hopefully) three, including a spacewalk. Liftoff, anyone?

The trouble is, only one player is playing now.

It's Simple Really

What She Said

Carolyn Porco on what we should be doing regarding space exploration.

One can argue that Jupiter / DIRECT or even existing boosters may be a better bet than Ares V, but basically, what she said.

And meanwhile, the more I see of Ares I, the more I'm convinced that the project will fail. I've never seen a project of any kind with so many "marginal"s in its preliminary design review, and with essentially no budget for unforeseen circumstances. The Constellation program, consisting of the Orion spacecraft, the Ares I booster to carry it, and the Ares V heavy lift vehicle, is failing, and mainly because Ares I is a dog.

What started out as a simple concept using existing parts has mutated until it's something quite new.



From Transterrestrial Musings :

This past week, Constellation patted itself on the back for getting Ares I through its first preliminary design review (PDR) but glossed over the fact that Ares I still has to conduct a second PDR next summer to address the unresolved mitigation systems for the first stage thrust oscillation issue, with unknown consequences for the rest of the design.
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More worrisome than the PDR slips are the grades that Ares I received in this partial PDR. The pre-board used a green, yellow/green, yellow, yellow/red, and red grading scheme, which can also be depicted as the more familiar A (4.0), B (3.0), C (2.0), D (1.0), and F (0.0) grading scheme. The pre-board provided ten grades against ten different success criteria from NASA's program management handbook. The ten grades had the following distribution:

One "Green" (A, 4.0) grade
Two "Yellow/Green" (B, 3.0) grades
Four "Yellow" (C, 2.0) grades
Three "Yellow/Red" (D, 1.0) grades
No "Red" (F, 0.0) grades

So seven of Ares I's ten grades were a C or a D. Ares I is NASA's planned primary means of crew launch over the next couple of decades and should define technical excellence. But instead, the project earned a grade point average of 2.1, barely a "gentleman's C" (or a "gentleman's yellow").

Can it be bailed out by more time, and more money? Not without mending it with a new one, and the budget is more likely to be axed than tripled.

Which will leave the USA with no crew launch capability from 2010 to at least 2020.

My Hair's Longer

Reconstruction from skeletal remains of a Neanderthal Woman, from National Geographic.

My hair's darker, but has red highlights like hers. And my hair's longer. My brow isn't ridged. But otherwise, we could be sisters - or at least relatives.

There is mitochondrial evidence showing little (if any) genetic mixing between H.Sapiens and H.Neanderthalis. But I can't help wondering. There is other evidence that says there may have been interbreeding. Apart from people like me.

Today's Battles

At the Salt Lake Tribune :

Our definition of marriage is the union between a man and a woman and we don't have to alter it to include the deformed or defective.

No comment necessary.

At RightPundits.com :

Forty years ago the federal government began to take on the role of Orwell’s Big Brother, inserting Washington DC into the hiring and management practices of almost every business in the United States. State governments soon followed, which leaves us today with an ever-increasing tangle of titanic-sized regulations that dictate what we can and cannot do as small-business owners in the interest of achieving state-desired social engineering.

The case of Diane Schroer is different. This is the public sphere and so the public deserves the most value for the buck. As long as her gender change does not affect productivity on the job, the decision of the court was morally right.

Yes, that should be the view of all on the right, not just the more sane. But it means we're making progress.

At The Other McCain

Just because I'm at a very early stage of transition -- being a married father of six and all that -- doesn't mean that I don't have rights as a transgendered lesbian.

Well, at least there's an attempt at (sarcastic) humour.

And Pursuing Holiness :

Zoe, you mistakenly equate brain abnormalities with genetic problems. In reality, pathological thought patterns shape the brain, and one of the best ways to cure many psychological ills (for example, anxiety disorders) is to correct the patient’s thoughts. That is the essence of cognitive-behavioral therapy.
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Finally, no reasonable person has a problem with taking an intersexed, genetically diseased child and trying to mould him into whichever gender seems the most appropriate...
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We assault masculinity in almost every area of our society, and now we have idiot judges blatantly encouraging men literally to castrate themselves. It is no wonder men are so weak these days.

If a little knowledge is a dangerous thing, this guy is a category V disaster. Ignorance and Arrogance are a toxic combination.