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The Current Transcript for July 5, 2016

Host: Mike Finnerty

STORIES FROM THIS EPISODE

Listen to the full episode

Prologue

[Music: Theme]

SOUNDCLIP

This is a Tesla Model S fitted with autonomous mode.

[Sound: Car dings]

And there we go. The car has taken over steering. No feet, no hands. [tone rises in excitement] This is so weird!

MIKE FINNERTY: Self-driving car technology has come so far, so fast, some of us didn't even realize we might have shared the road in Canada with people whose hands had come off the steering wheel. Now that a man has died after Tesla's so-called autopilot failed to distinguish a white tractor-trailer crossing his path from white sky, the question is, has it all happened too fast without the proper safeguards in place? That's in our first half hour. Also today....

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I put in almost 40 years fighting, and I'm not important to the fight anymore. Isn't that wonderful?

MF: Wonderful, because after decades of fighting for transgender rights, Phyllis Frye sees transgender acceptance across much of society today. We'll hear about her monumental journey in half an hour. I'm Mike Finnerty, welcome to the summer edition of The Current.

Death of Tesla driver tests future of driverless car

Guests: Matt Bubbers, Jason Millar

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VOICE 1: Oh my gosh, dude.

VOICE 2: [laughs]

VOICE 1: No way! It's making the turn for you. How, man? Do I have to press the gas still?

VOICE 2: Nope, you can let go.

VOICE 1: I can?

VOICE 2: Yup.

VOICE 1: No way, dude! this is nuts, man.

VOICE 2: [laughs]

MIKE FINNERTY: Laughter and disbelief there as a couple of friends test-drive a Tesla brand electric car in autopilot mode. But news emerged about the car late last week that was no laughing matter.

SOUNDCLIP

REPORTER: This morning, federal investigators searching for what caused Joshua Brown's Tesla Model S, in autopilot mode, to slam into the side of a semi, killing Brown.

JOSHUA BROWN: Aw, jeez.

REPORTER: Brown, seen in this 2015 YouTube video, in what appears to be a Tesla with its assisted driving feature activated.

JOSHUA BROWN: What am I going to do with my hands down here? [laughs]

REPORTER: On its website, Tesla mourns Browns' loss, but points out his is the first known fatality in just over 130 million miles with its self-driving mode.

MF: Now, Tesla was also quick to add that in order to use its so-called "autopilot system," drivers must agree to keep their hands on the wheel and their eyes on the road. And that may not have been the case in this crash, which actually happened in May. The public just learned about it on the eve of the long summer weekend. This high-profile accident is raising some important questions about the emerging world of self-driving technology and just how safe it may be. Matt Bubbers is the automotive editor for Sharp Magazine and a driving columnist for the Globe and Mail, he's test driven an autopilot Tesla and he's with us in our Toronto studio. Matt, hello.

MATT BUBBERS: Hi Mike, thanks for having me.

MF: How did this crash happen? How did Joshua Brown die?

MATT BUBBERS: You know, it's a very sad accident, obviously a tragic case and condolences, first, to the family. A lot of people I think were kind of waiting for this moment, you know, this was the first reported fatality because of an autopilot, self-driving, semi-autonomous car, whatever you want to call it. And it was just a matter of time before this happened. The roads are dangerous, people die all the time, but in this case, he was--

MF: On a divided highway, so there was traffic in both directions, and there was a truck, a tractor-trailer that, you know, basically crossed his path perpendicular.

MATT BUBBERS: Yeah, that's right. The truck was crossing this two-lane highway, pulling out across the highway, and it was, according to Tesla, it was a bright, sunny day, the truck was white, big tractor-trailer. None of the car's radars or sensors apparently picked up this truck in front of him and the car hit between the wheels of the tractor trailer, kind of slid right under it.

MF: And shore off the roof.

MATT BUBBERS: That's right.

MF: I think Tesla even said that if it had hit maybe the cab of the tractor-trailer, or the rear, the other safety features might have saved him, but in this case, he just kept on accelerating.

MATT BUBBERS: Yeah, the car-- well, you know, it was driving semi-autonomously, using the autopilot feature, it just kept going. The truck hit the windshield of the Tesla and veered off the road a little while later.

MF: What do we know about what he was doing while that happened?

MATT BUBBERS: We really don't know a lot at this point. We've got the statement from the sheriff's department, we've got the Tesla official statement, but really, I mean, I wouldn't want to speculate on what he was doing. Tesla does say that you are supposed to keep your hands on the wheel. The driver is ultimately responsible. They call it autopilot, but that's maybe a bit of a misnomer.

MF: The truck driver, I think, said he heard a Harry Potter movie playing.

MATT BUBBERS: Right.

MF: So he could have been watching a film?

MATT BUBBERS: I mean, the truck driver said he heard a Harry Potter movie playing, but maybe he was listening to the audiobook, you know? He never saw the video playing, so I wouldn't really want to speculate on that.

MF: The crash took place in May, and we find out about it on the eve of the Canada Day and July fourth weekend. Why did it take so long to inform the public?

MATT BUBBERS: That's a good question. But on the other hand, most automakers don't inform the public when someone dies driving one of their products. It's just, it's not common practice. Tesla apparently only informed us, they released a statement, when the NHTSA, a regulatory body in America, decided they were going to investigate this crash. So you know, I wouldn't go down a conspiracy theory roads or anything-- I don't think there's any of that going on, I think it's just, now there's an investigation, so here's the news.

MF: Right, so investigation underway, and no news yet of a lawsuit from the family. And in fact, this driver was a fan of the Tesla, right? And, you know, an early adopter. But who is responsible? Is Tesla to blame, is the driver to blame? Do we know?

MATT BUBBERS: I mean, that is the big question with autonomous cars, and it's something that I think we're going to have to have a bigger conversation about. In this case, Tesla says look, our cars, the autopilot system is in beta, we let you use it-- they charge for it, by the way-- but you can use it, customers can use it, and they have to acknowledge that the driver is always ultimately responsible. But on the other hand, this system is called autopilot. It brings to mind, you know, kicking back, reading a book; but in fact, that's not what it is. That's a total misconception about what autopilot is and semi-autonomous features are now. A lot of the headlines are saying autonomous cars, robo-cars. It is important to note that this car didn't drive by itself, it needs a human driver.

MF: Now, I'm willing to admit that I just didn't realize that here on Canadian roads, there are people with these autopilot cars driving around. And we know that because you're one of them, you did have half a day in a Tesla driving around with it on autopilot in the Toronto area?

MATT BUBBERS: Yeah, that's right. Yeah, driving around some of the busiest highways in the country.

MF: What was that like?

MATT BUBBERS: [chuckles] You know what, it was scary. It's a really surreal experience. I mean, imagine the first time use cruise control. You push a button, you take your foot off the pedal, and the car just keeps sailing along the road. It's a little bit frightening. And, you know, it's that times a thousand. It's like jumping off a building and you're not sure if your parachute is going to open that first time. It's a leap of faith to take your hands off the wheel and feet off the pedals and trust that the car sees the other car in front, the traffic around you, and is going to brake. Every bone in your body telling you to press the brake pedal when you see a car slowing down in front of you; but you have to just relax, not do it.

MF: And were you able to relax, were you able to trust the car?

MATT BUBBERS: You know what, despite myself, I was. Even in half a day of driving, you really get comfortable surprisingly quickly with this stuff.

MF: And how tempted are you, then, to start doing, I mean, other things, or slightly showy things? For instance, I understand you put your hands out the window at one point?

MATT BUBBERS: Yeah, I was hamming it up for a video a little bit. But you know, it is so tempting to do something else, because actually, when you're not on the pedals and you're not on the steering wheel, it gets really boring, but it's up to you. You know, it's hard to remember that you're actually supposed to be looking out the window, checking the mirrors, doing all the stuff you're normally supposed to do while you're driving, but the robot is handling all that boring stuff. So you want to check your phone or read a book, newspaper, whatever. But it's still illegal, you can't do that.

MF: You have to be watching the road. But is there anything that forces you to watch the road and hold the steering wheel?

MATT BUBBERS: Yeah, I mean, on the Tesla and on some of the other semi-autonomous cars available today, they do flash a little bit of a warning. They can tell if your hands aren't on the wheel and a little light on the dashboard will come on and tell you to hold the wheel again.

MF: But presumably, that happened before you put your hands out the window.

MATT BUBBERS: In the Tesla, sometimes it takes a little bit of time. It'll kind of let you go without your hands on the wheel for a certain amount of time. The other semi-autonomous car that I've driven, the Mercedes, the new E-Class, it is very strict. So within a couple of seconds if you have your hands off that wheel, it'll blink to tell you to put them back on.

MF: So how did Tesla autopilot do, in your view?

MATT BUBBERS: It was really good. I was surprised at how competent it was, and how quickly I felt comfortable with it. But it wasn't perfect. You know, these systems, Tesla admits it's a beta; it wasn't perfect. And you know, one time driving off an off ramp getting off the highway, I wasn't sure if the system would work on an off ramp?

MF: What happened, how come you weren't sure?

MATT BUBBERS: Well, because it's sometimes not clear what the car is going to do and what the driver is going to do.

MF: So you're exiting the highway…

MATT BUBBERS: Mhm.

MF: And then what happened? Was a kind of a ramp that, a circle ramp or a…?

MATT BUBBERS: Yeah, yeah, it's just your highway off-ramp, so it curved around hard to the right, I remember, and we were in the exit lane, and I thought the autopilot was looking at both lanes, it could see everything, but you know, then it just started accelerating towards the barrier on the far side of this ramp, and I had to grab the steering wheel and turn myself. But--

MF: And was that easy enough to do?

MATT BUBBERS: Yeah, it was very easy to do. You know, it's instinctive, it's a self-preservation kind of instinct.

MF: But scary.

MATT BUBBERS: Yeah, it's scary, and you know, it reminded me that the system is not perfect. It is, I don't think meant to do on and off ramps now, that's coming in the future Tesla update.

MF: Do you think they should be on the roads? I mean, I said a little bit earlier, that I'm not sure most people, many people-- certainly, I didn't realize that these cars were on the road doing this. Do you think that it's wise? Has there been public sign off on it?

MATT BUBBERS: You know, I think that's why this crash has been really important. So we can have this conversation about whether they should be on the road or not. And you know, like it or not, they are already here. And I think it's similar to the case of the Internet, where the technology advanced so much faster than the laws surrounding it. The legislation needs time to catch up, and it's the same case with autonomous cars.

MF: Matt Bubbers, who is the automotive editor for Sharp Magazine, and is in our Toronto studio. And as you heard, has driven one of the Teslas on autopilot here in Canada. Matt, thanks for coming in.

MATT BUBBERS: Thank you.

MF: Fascinating. There's been plenty of talk about self-driving cars, of course, in recent years, but most of it framed as a technological quest. The death of Joshua Brown in his Tesla is a reminder that there's an important ethical dimension of self-automation technology, too, and Jason Millar is someone who studies that. He's a Postdoctoral Research Fellow at the University of Ottawa Faculty of Law, and he specializes in the ethics and governance of robotics and artificial intelligence. He's in our Ottawa studio this morning. Jason Millar, hello.

JASON MILLAR: Hi, Mike.

MF: What's your view on the death of Joshua Brown?

JASON MILLAR: Well first of all, I mean, I'd echo Matt's comments that it's really unfortunate that we're here talking about this kind of issue. But I think Matt raised a lot of really interesting observations in relating his half day experience in a Tesla. He talked about the level to which he was able to trust the system after a very short amount of time in the car. He talked about the differences in design features between different manufacturers, so I think he mentioned he was in a Mercedes, as well, and that the Mercedes was very quick to prompt him. He called it a more strict car, right, kind of strict in watching over whether he was paying attention to the road, had his hands on the wheel, and things like this. And I think that comparing these cars and recognizing the many different ways that manufacturers can design these features, these automated features into their cars, raises really important and interesting questions about how we go about sort of managing the trust relationship that's struck between the driver or the user and the technology. And that has a lot to do with the way that the car's designed, the amount of training that we're demanding of the users that are getting into these vehicles.

MF: I mean, Tesla knew this was going to happen. You knew this was going to happen, right? There was going to be a fatality.

JASON MILLAR: I mean, everybody knew that technology is not perfect, it fails. Every technology fails, and there's a long history in automation-- you know, people who research this will tell you that automation, as it increases our ability to have safer environments, it can also fail in really interesting ways, in unexpected ways, ways that we didn't anticipate. A lot of times because when you automate things, you change that trust relationship between the user and the technology, so the user will expect the technology to do certain things that maybe the technology is very good at, and in other times, the technology is not so good at. But whether or not the technology is communicating that information back to the user effectively to manage that understanding of how much the user should trust the system.

MF: So I mean--

JASON MILLAR: That's an important problem, and I think this Tesla incident drives that home.

MF: Yeah. Because, I mean, you're someone who thinks about this week in and week out all year round, but a lot of people listening probably don't so much. I wonder how much of a moment you think this is, how much of a kind of, possibly even a turning point it is?

JASON MILLAR: Well, I mean I think it's certainly a moment where all those people who are just flipping on features in the cars need to take pause and kind of think to themselves, you know, what is it exactly that's going on in this car? Do I really understand how the sensors are detecting vehicles? Is this car inviting me, maybe, to sit back and relax a little bit too much in the moment when it's driving?

MF: But that is what people are doing in these YouTube videos. You go online and you look at driverless cars, and I don't know, maybe there's just something about the human spirit that you want to turn this thing on, and as Matt said, he pops his hands out the window, someone else--

JASON MILLAR: Yeah, right.

MF: It's inevitable, no? This is what people are going to do.

JASON MILLAR: And again, that you raised an interesting point. If it's inevitable, then as designers and engineers, they need to take this kind of inevitability into account. So is it sufficient to tell users hey, keep your hands on the steering wheel, when in fact we can anticipate quite reasonably that people are going to act in all sorts of silly ways, right?

MF: And is there no way technologically to determine that for the car, being a smart car, to know when the driver is misbehaving?

JASON MILLAR: Well, I mean, you hear about these systems, so right now, there are other automated systems in cars that will detect when drivers are looking drowsy and kind of nodding off. You can certainly detect when the hands are on steering wheels, probably detect when feet are engaged on the pedals, and things like that. But again, you know, when you offer your customers the option to kind of flip a switch and put the car in a particular mode, depending on how you design that system, you can... It may not be enough just to have minor little beeps going off telling you hey, put your hands back on the wheel. I mean, the airline industry-- So the fact that this is called autopilot I think is, it allows us to have this whole other conversation about automation. That happened in the airline industry. So as they automated cockpits, one thing that they found was that this kind of complacency set in with the pilots, and they actually had to start introducing false alarms back into the system to keep the pilots engaged. And this is on top of extensive training that pilots go through, not just before they get in the aircraft, but as they go through their careers as pilots, they're constantly in simulators. And we don't do anything like that with users, so I think it's not just enough to put sensors in the car, I think there's a lot more that goes into planning for these types of systems in actual driving conditions that maybe this opportunity this this incident gives us an opportunity to reflect on.

MF: We contacted Tesla and asked them to appear on the program, they declined our invitation. They did, however, release a statement after the incident and here it is in part: "Autopilot is getting better all the time, but it's not perfect and it still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving." Agree?

JASON MILLAR: Well, I think what you're going to see is many experts poring over statements like that and data like the kind of data that they're presenting as this case, when it comes to the courts-- it's not there yet, but I have no doubt that this will work its way through the courts-- people will be fighting over whether or not that statement is an accurate representation of what's going on with the Tesla.

MF: Do you think that we have public buy-in more broadly-- I mean, do people realize that the autopilot mode is in operation here in Canada, and are they okay with that?

JASON MILLAR: You know, I'm not sure. I don't know the extent to which people understand what the current state of the technology, of driverless technology in general is. So I get different, you know, when I talk to people, I get different reactions. So some people think that Google cars are out there already driving around our streets, some people understand they're not. So really, it's not clear what the public understands about these particular features. It's really not clear to me, I mean, I get different comments from different people, depending on who I'm talking to.

MF: And I mean, look, are we safer, is the bottom line, having them or are we safe having them out there in beta mode? Because Tesla does actually call it beta mode. They're testing them out, right?

JASON MILLAR: Right, it's surprising. I mean, the last beta software I tested was probably a version of Microsoft Office years and years ago, right? The worst thing that could happen to me was maybe I lose some data on a PowerPoint slide or an Excel spreadsheet. This is a different kind of scenario. I think the beta mode, the choice of calling it beta mode is an interesting one. Again, I think that's something that you'll hear about when these court cases come through. Now, I mean overall, the technology, is it a good thing, is it a bad thing, are we safer? I think--

MF: But that is the goal, surely, isn't it?

JASON MILLAR: That is the goal, and it's a reasonable goal. I'm as much an enthusiastic about getting these cars on the road as anybody else. I think it's inevitable. I like to think that it's inevitable these cars will improve safety, lower the accident rates, and so on and so forth. But again, automation as you roll it out can fail in really interesting ways, and the goal here is to roll it out in the most responsible way possible, taking into account all of these nuances in the design, right? And it's not entirely clear that that happened in this case, that that's been done.

MF: You're not 100 per cent sure, or you're not 100 per cent on board saying that it is the most responsible way at this point?

JASON MILLAR: I think it raises enough questions that we should be looking at how these systems are designed to manage these trust relationships. I think there are many more questions than answers at this point.

MF: Jason Millar, Postdoctoral Research Fellow at the University of Ottawa. Faculty of Law. Jason, thanks very much for speaking to us.

JASON MILLAR: Thanks for having me, Mike.

MF: And if you'd like to comment, head over to our webpage and send us an e-mail.

ENCORE: Transgender judge Phyllis Frye helped put the 'T' in LGBTQ

Guests: Phyllis Frye

MF: Hello, I'm Mike Finnerty and you're listening to the summer edition of The Current.

[Music: theme]

MF: Coming up, a leading light in the fight for transgender rights.

SOUNDCLIP

The story that I heard after I got into law school is that the professors had quite a debate about whether I was going to get in or not. It wasn't because I didn't do okay on my LSAT. It wasn't because my grade average wasn't good. It was because I was transgendered. But when I graduated I had won the respect of my peers, so that when I walked across the stage there was not a single jeer, there was not a single hoot, not a single ugly remark made. There was always warm applause.

MF: It was 35 years ago, back in 1981, Phyllis Frye took that triumphant walk across the stage at the University of Houston. At the time, the idea of transgender rights was met mostly with confusion, if not outright hostility. But Phyllis Frye was well on her journey to change that. And in the decades that followed she helped secure legal victory after legal victory for transgender people. Her own journey to become Phyllis had started years earlier. Today, she holds the distinction of being the first openly transgender person to sit as a judge in the United States. Phyllis Frye is an associate judge for the city of Houston's municipal courts and a senior partner with Frye, Oaks, and Benavidez, where she devotes her practice to transgender clients. She spoke to Anna Maria this past fall.

ANNA MARIA TREMONTI: A lot of people listening won't fully appreciate what it would have been like to come out as a transgender woman in the late 1970s and early eighties. What was that like?

PHYLLIS FRYE: It wasn't any fun, that's for certain. I lost my first wife and child. I was run out of the military even though I had a regular army commission and I practiced engineering for several years. And during that time I met the woman who became my second wife and has remained my wife for 42 years. But, back then, as I began to transition, the engineering community blackballed me. And so I had to begin my third career, which is why I went to law school on the GI bill. But during that time of transition in the late seventies, the neighbourhood was really, really ugly. Our house was egged, tires were slashed, graffiti was sprayed on the driveway. We got lots of obscene phone calls around Christmas and Easter. It just wasn't any fun and I could not get any kind of meaningful employment for a very, very, very long time and we struggled to hold stuff together. We struggled to the point that the first Christmas after my transition our church brought us the canned food that had been placed at the altar the Sundays before Christmas that was to be given to the church’s poorest family and that was us.

AMT: I want to talk a little bit more about what you were facing then just around that time, because you say that your property was vandalized-- You actually walked around door to door to explain things to your neighbours.

PHYLLIS FRYE: Well, I tried and I knocked on doors and also I put letters in their mailboxes for the neighbours that were close by. I just wanted them to know what was going on because I knew they would talk about me. I knew they would see me because I wasn’t making any secret about who I was. And I figured that it would be best for them to be talking about me with the truth rather than with who knows what. But and as it turned out, some of the neighbours, not many, but some of the neighbours were very, very gracious.

AMT: And this was around 1976, right?

PHYLLIS FRYE: 1976, summer of 1976.

AMT: That's when you started living openly as a woman.

PHYLLIS FRYE: Yes.

AMT: Do you remember a moment when you said, okay, this is it. I've got to do this.

PHYLLIS FRYE: Actually, my wife was the one who made the final decision, because I couldn't get work and I had been applying for work for a long time and every time I was turned down it was because I was trying to get a job as a guy, but with the open and complete knowledge that when I was not at work I would be living as a woman, because I didn't want this to come back and bite me, as it had in the past and finally I couldn't get work. And so she said, well, if they're not going to hire you because of who they think you are, you may as well be yourself. And so that was that was it. That was September of ‘76.

AMT: And your wife, Trish - you make the point you've been married for 42 years - she has been with you through so much of this. Talk to us a little bit about what she has meant to you over the years as you went through that.

PHYLLIS FRYE: Well, she is obviously my best friend and she is my wife and I love her very much and she loves me. We were under so much pressure, both from her family and my family and the neighbours and the job. Plus, there was a law in the city of Houston at the time that made me illegal whenever I would - and any other trans person - whenever they would step out of doors cross-dressed, as it was called back then, and subject to arrest. So she—

AMT: This is a local ordinance in Houston, right?

PHYLLIS FRYE: Yes, it was. Which I got rid of in 1980. So she never knew when she came home if I was going man jailed or not. So, the pressure was so intense, as she has explained it to other people in the past, that it was the kind of pressure that it would either force us apart or jam us together and it jammed us together.

AMT: And I won't belabour this, but I think that there are-- And we have on this program talked to and heard the stories of other people who have helped a partner through transition, but for people who don't understand that there are many people-- And, of course, you went through a divorce over this before you met Trish. There are people for whom that's the deal breaker and they can't be part of that. And so if you can help us understand how you were able to move together-- I think that at one point you're quoted in a story as saying, she said just don't get the surgery, am I right?

PHYLLIS FRYE: Well, at that time, yes. She said, if you stop short of surgery, I'll stay with you. And she did. And then about ten years ago, she gave me the green light, because we were both getting older, and she said that she thought that I had fulfilled my promise and so she gave me the green light. But I want to say also that a lot of times wives ask her, how did you stay with Phyllis? Or I don't know if I'm going stay with my spouse, this and that. She gets a little impatient with them. And she says, you've just got to decide for yourself. I will say, as an advocate and as a lawyer, in the transgender community I am seeing more and more and I can't put a number on it and I can't put a percentage on it, but I will say that the momentum is swinging to where more and more spouses are staying and so that's a good and healthy trend. I think that has a lot to do with the fact that same-sex marriage is now more understood and accepted. And a lot of the spouses back than split because they could not or, should I say, would not allow themselves to be in what was perceived as same-sex marriage. Now that that bugaboo is going away I think that it's taken a lot of pressure off of some spouses so that they're staying with their transgendered wives or husbands.

AMT: Now, this raises another question when we talk surgery. And I'm not asking about you specifically, but the one thing that I think might be important to understand and you can help us understand - us, meaning those people who perhaps don't necessarily have a lot of experience around transgender people still. The idea of whether someone, what they choose in terms of surgery, what they choose in terms of hormones is not the wider issue, that that is very personal and that is not about identifying necessarily. Am I correct?

PHYLLIS FRYE: I agree with you. Yes, a hundred per cent. Whether a person has hormones, whether a person has top surgery, whether a person has bottom surgery, anything else of that nature that's nobody's business other than the transgender person and whoever that person is intimate with. I've had some people, you know, just demand to know what my surgical status is or what other people's surgical status is and they're not going to have sex with me. I'm not going to raise my skirt in public and show anybody. What matters is how you live your life and how you present yourself. And transgendered men present themselves as men and transgendered women present themselves as women. And what their surgical status is nobody's business except their own and whoever they choose to love and be intimate with.

AMT: So, in the long fight for rights that you are so much a part of-- You organized the first international conference on Transgender law and employment policy back in 1992. What was the goal of that?

PHYLLIS FRYE: The goal of that was for transgenders to be able to take control of their own destiny with respect to the law. It had become increasingly obvious to me both locally, state-wide, and increasingly nationally that transgenders weren't part of the, then, lesbian, gay, and later LGB legal community. Transgenders were continually excluded even though I was raising as much sand as I could. You’ve got to remember, we didn't have the internet then. And, so, what I would do is I had accumulated, over a number of years, the fax numbers for almost every gay publication in the United States. And I would, depending on what I had heard or what I had read or what I'd seen, I would write a press release, from myself at the time, later, the conference and an Saturday night when the rates are low I would burn up my fax machine. And, from time to time, my stuff about transgender inclusion would get published.

AMT: Right. And this conference, is it true you used your credit card to book the Hilton Hotel and just hoped people would turn up. You had no idea that you’d get--

PHYLLIS FRYE: Yes. That was an annual event. Trish and I put it on our credit card and crossed our fingers that enough people would attend to pay for it and every year enough people attended to pay for it.

AMT: So, the first time you did that, what was it like for you to watch as the room filled up with transgender people turning up to advocate for their rights?

PHYLLIS FRYE: It was very exciting. There were only about four attorneys that were trans who attended and there was only two of us that were out practicing as attorneys - the other two were still closeted. Everybody else was a transgender advocate and it was it was very exciting.

AMT: You had gay and lesbian friends who attended that conference, but one of your most significant battles was actually with the Human Rights Campaign, which was the largest gay rights organization in the US.

PHYLLIS FRYE: Yes.

AMT: How did that happen?

PHYLLIS FRYE: Well, that started in 1994 because the Employment Nondiscrimination Act was introduced in July of that year in the United States Senate and one of our members, she got an invitation to go to the first hearing and we were not allowed to present as transgendered people and we began to ask a lot of questions and found out that HRC had been doing everything they could to block us.

AMT: HRC - Human Rights Campaign. Right?

PHYLLIS FRYE: Yes, ma'am. Had been the one who had blocked us from being in ENDA and continued to block us from being in ENDA and that fight went all the way to approximately 2006, I think.

AMT: So, why was that? They thought that transgender people shouldn't be included under the umbrella?

PHYLLIS FRYE: They thought we were a drag on their behind and drag is, I know, a pun. But you've got to remember back then, a lot of well-heeled gay and lesbian people were embarrassed whenever there was any type of pride parade or anything else, because all the efforts they would put into the fight for their rights they felt was distracted by drag queens and cross-dressers and so they didn't want to have anything to do with us and they felt that we would be a distraction. And we were more of a distraction when we organized than they figured we could possibly be. And so, finally, in, I think it was around, 2006 - it might have been 2008 - when another ENDA bill was going to be introduced and it was decided once again to leave us out. But, this time, we had so many allies that all these other organizations said no to HRC and no to a non-transgender ENDA bill. And so it was edited and transgenders been in it ever since.

AMT: So, you really are one of the people who got the T in LGBT and now Q.

PHYLLIS FRYE: Yes, absolutely. I was the early leader in the national movement for legal and political rights. There were other local and regional people who did a lot of work during and before me but as far as beginning the national movement for legal and political rights, that was me.

AMT: And it's worth remembering - you're saying 2008. It’s just still 2015. It wasn’t that long ago.

PHYLLIS FRYE: Well, no, it wasn't. But I just want to say that there are so many transgender supporters out there now. During the past seven years since I turned 60 - I'm 67 now - I have really been able to just kind of relax. I haven't had to carry the fight anymore and it is so heart-warming to know that even though I'm loved and respected, I'm not necessary anymore. I'm not a needed commodity anymore. And, so, this whole being the first transgender judge and all the honours that have come my way over the last several years have really been gravy and so life is good.

AMT: You know, it's estimated about 700,000 people watched Caitlin Jenner's coming out interview. Did you watch?

PHYLLIS FRYE: No, I didn't. And it's not because I'm mad at Caitlin or I am the putting Caitlin down. It’s such an old story for me that I just, you know, I had other things to watch and other things to do. I salute her for coming out. I think she's done a lot of good for us by coming out just as, bless her heart, when Renée Richards came out when I was first dealing with my own coming out. And Renée took so many hits and did so much good work for us. The thing about Caitlin that makes me so sad is that I think she's one year younger than I am and she had to wait all of this time, all of this time to finally be true to herself. I cannot imagine the horrors that she went through keeping that in the closet and so I salute her. I'm proud of her. I hope someday to meet her and you go, girl.

AMT: Interesting, the year that that you came out fully identifying as a woman openly was the summer of ’76, which is the same summer that Bruce Jenner was celebrating—

PHYLLIS FRYE: Yes, I remember that.

AMT: --a decathlon victory at the Montreal Olympics, according the New York Times. They put those two dates together. But that raises questions of youth, because when you were younger and you presented as a boy and as a young man, you gravitated to quite a few groups that embrace very traditional roles for men. You were an Eagle Scout. You joined--

PHYLLIS FRYE: I still am an Eagle Scout.

AMT: Okay. And you were a soldier. When you look back now, what was going on there?

PHYLLIS FRYE: Well, you’ve got to remember, we didn't have Internet, we didn't have social networks, we didn't have much information at all. If there was any identification of any kind it was with being gay and gay was very, very frowned upon and very stigmatized and my family, in addition to the racism that I was taught, was also taught homophobia. Why in the world would I want to bring that upon myself? You know, in my 20s, I was going nuts with this whoever I was struggling to come out and I could no longer deal with it. So, I came out to my first wife and she pushed me away. And then I started coming out. The military pushed me out. I fought and got my honourable discharge. And I told you the rest of the story at the beginning.

AMT: Yeah. Let me just ask. I mean, at one point, you went through aversion therapy.

PHYLLIS FRYE: Yes.

AMT: While you were still in the army. Did you do that to try to appease the army? Were you fighting yourself?

PHYLLIS FRYE: I was trying to keep my wife at the time. That's why I went through the aversion therapy. And as I was leaving Europe and I was being discharged from the military, I slashed my wrists. That's common. I look back on it now. I was not interested in killing myself. I was screaming out to the world to help me.

AMT: So, how old were you when you-- I don't know if the question is when you knew or when you started to really think about this?

PHYLLIS FRYE: Well, I knew something was different when I was four or five and I began cross-dressing in secret when I was eight. When I was in high school, in RTC, I would have much rather been in the pep squad. And even though I was the RTC Commander at my high school, I would have much rather been a cheerleader. There was many things I would have much rather have been but I knew it wasn’t going to happen so I did the best I could.

AMT: But you were young. The reason I ask is because I don't think I, and this is of course anecdotal, I have never talked to a transgender adult - and I've talked to many now - who have not told me that they knew when they were like four or five or eight, that as a child they knew.

PHYLLIS FRYE: Yes.

AMT: And then they understood that the people around them wouldn't be able to deal with it ,so they didn't know what to do about it.

PHYLLIS FRYE: Yes. And so you cope. Now, today, thanks to the Internet and media and entertainment and magazines, more and more children are coming out to their parents and more and more parents are accepting. I take a lot of kids through the courts now. I've taken them as young as eight, I’ve taken them through the courts and I get their names changed and their gender ID changed without any surgery and I get a court order to have their school records changed and they begin to live their life as who they truly are. And their parents are wonderful, wonderful people.

AMT: Well, and I want to ask about that, because you know there are controversies, even here in Ontario, over the teaching of sex education and one of the things that will be taught is the issue of transgender and gender identity. And there are parents who expressed fears that their children will learn about something and somehow be tempted to then want to change gender identity. What do you say to people?

PHYLLIS FRYE: [Laughs] That's ridiculous. You don't wish this upon yourself. You don't wish all the confusion. You don't wish all the stigmatism. You don't wish all that fear. You don't wish having to go through puberty. There's no way you wish this upon yourself. If you learn anything, you learn, oh, so that’s what's going on. Oh, so that’s who I am. If you learn anything, it's an awakening as to who you already were and didn't understand.

AMT: A lot of the legal gains made by transgender people are based on administrative decisions or regulations, not necessarily actual laws, am I right?

PHYLLIS FRYE: Yes and no. As for instance, social security I just talked about, OSHA regs, EEOC regs, the Department of Education regs, passport, all of that is administrative.

AMT: Okay. So, how secure do you think those gains are then

PHYLLIS FRYE: If there's a Democrat elected in 2016 to the presidency, they'll be secure for another term. My belief is that after another eight years, they will be so ingrained that they should be secure. But if the Democrats lose the White House in 2016, they could easily disappear.

AMT: Because you have made the point that you don't feel you have to carry the fight anymore.

PHYLLIS FRYE: I'm not important to the fight anymore. Isn't that wonderful? There's other people who are doing that now and it's wonderful. You know, I have a good life now and I deserve it and I put in almost 40—well, almost 30 years fighting. I'm just I'm sorry I'm not interested in slugging it out anymore. It's other people's turn and they're doing a good job of it.

AMT: Phyllis Frye, thank you for speaking with me.

PHYLLIS FRYE: Well, I really enjoyed it and hope you have a good day. I hope a lot of people heard it and take good courage from this.

AMT: Well, thank you.

PHYLLIS FRYE: Bye.

MF: Phyllis Frye, associate judge for the city of Houston's municipal courts and the first openly transgender person to sit as a judge in the United States and she spoke to Anna Maria in October. Since then, the first transgender judge was appointed in Canada. Kael McKenzie, a member of Manitoba's Métis Nation, was sworn in as a provincial court judge in Manitoba in February of this year. That is our program for today. I'm Mike Finnerty. Thanks for listening to the summer edition of The Current and we will see you tomorrow.

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July 5, 2016 full episode transcript

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