After six years of serving her community, the Detroit funeral home employee Aimee Stephens was fired when she came out as transgender. A federal court upheld her employer’s right to terminate her. Kansas resident Stephanie Mott requested to change her gender on her birth certificate and was told that even if she had genital surgery, state law does not allow her to amend the document. Virginia high school student Gavin Grimm transitioned during his sophomore year, and by senior year he was still not allowed to use the boys’ bathroom at his public school. These cases, all of which occurred between 2013 and 2016, underscore the fact that though transgender awareness has increased in both the media and among Americans in general, some laws still lag behind. Final edits to this book were made in February 2017, shortly after Donald Trump became president. It remains to be seen how the current or future administrations will affect transgender people under the law.
From a young age, transgender and gender-nonconforming people suffer from a lack of legal protections. There are no federal laws that explicitly protect transgender students against discrimination at school. Title IX of the Education Amendments of 1972, however, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX has been interpreted by some lawyers as applying to transgender students. In 2016, in the wake of North Carolina’s “bathroom bill” preventing people from using public bathrooms corresponding with their gender, the Obama administration sent a letter to every school district in the country advising them to use students’ preferred names and pronouns and to allow the use of bathrooms and locker rooms matching students’ gender identities. This letter is not law, but as a directive from the president, it carries a threat of lawsuits or loss of federal funding for schools that do not comply.
As they become adults, trans people face barriers at every level when it comes to employment. They are less likely to have family support and access to higher education, less likely to be hired and more likely to be let go. Their unemployment rate is twice the national average, and for black trans people, four times the average. Some things have shifted; in 2014, President Obama signed an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity. In addition, some federal courts have interpreted the Equal Protection Clause of the Fourteenth Amendment as applying to transgender people, arguing that anti-trans discrimination is a form of sex discrimination and allowing recourse for transgender people who have been wrongfully terminated to seek justice. However, this still leaves most transgender people without assured job protection.
Eighteen US states and more than 130 cities ban discrimination based on gender identity, including employment discrimination, but no law protects trans people on a federal level. The Employment Nondiscrimination Act (ENDA), a proposed federal law that would make it illegal to fire or fail to hire or promote a person due to sexual orientation or gender identity, was first introduced in Congress in 1994. In 2007, there was significant controversy surrounding ENDA when Democrats, supported by some LGBTQ+ organizations, including the Human Rights Campaign (HRC), suggested that the legislation move forward without protection based on gender identity. They argued that ENDA was unlikely to pass without the change, but this lack of solidarity and willingness to dismiss the needs of a significant part of the LGBTQ+ community resulted in a feeling of betrayal on behalf of many people.
Housing discrimination is also a significant issue for many transgender people. Fortunately for those in public housing projects, in shelters, and on federally funded voucher programs such as Section 8, federal regulations do explicitly prohibit discrimination based on gender identity and sexual orientation. However, despite legal protections, there are still high levels of discrimination. Because of family rejection and social stigma, approximately one-fifth of trans people experience homelessness at some point in their lives. The same percentage report being refused a home or apartment because of their gender identity. More than half of trans people who try to access shelters report being harassed by staff or other residents; 29 percent say they have been turned away, and 22 percent describe being sexually assaulted by staff or residents. For those who rent or buy their homes outside the public system, at least twenty states and two hundred cities and counties prohibit discrimination in housing, although, just as in the public system, there are gaps between laws and outcomes.
Appallingly, many people in our country are housed in the US prison system. The United States has 4.4 percent of the world’s population and 22 percent of the global prison population. Sixteen percent of transgender people overall and 47 percent of black transgender people have been incarcerated at some point in their lives, often on charges related to sex work or other nonviolent, survival-related crimes. According to the Federal Bureau of Justice Statistics, 40 percent of transgender prisoners are sexually abused in any given year. Transgender people in jails and prisons have few legal protections. Though federal guidelines mandate that decisions on where to place inmates not be based solely on their external genitalia, trans women are still often held in men’s prisons. There they may be segregated, ostensibly for their own protection, into cells where they spend twenty-three hours a day alone. Many transgender people are refused access to hormonal or surgical treatments while in custody. The Department of Justice has issued statements requiring state prisons to provide prisoners with hormone treatment if they were receiving it before incarceration, but this directive is routinely ignored. Trans people who were not yet on hormones prior to incarceration have even less recourse. And there is almost no way for someone to access surgery from prison. This may soon change, though, because in 2015, after a trans woman named Shiloh Quine filed a lawsuit, California became the first state to agree to an inmate’s gender-affirming surgery.
Family law is another area in which transgender people have had difficulty with discrimination. Transgender people have lost child-custody and visitation cases, and have been prevented from adopting or had their adoptions invalidated because of their transgender status. (See Myth 12, “Trans People Are a Danger to Others, Especially Children,” for more information.)
Trans people face harassment and violence on a daily basis. Some activists and lawyers have proposed that adding “trans” as a category to hate crimes bills could potentially prevent attacks or at least provide recourse. Such legislation can increase law enforcement investigation into, and also penalties for, crimes committed based on hatred toward a particular group. In 2009, the United States passed a law that expanded the definition of federal hate crimes to include those motivated by sexual orientation and gender identity. Though some LGBTQ+ people supported this bill, others were wary of any law that would lengthen prison sentences, arguing that trans people are targeted by police and experience high rates of incarceration, and that, therefore, expanding the US prison system is not the answer to their problems. Similarly, trans people disagree on whether it is useful, or even moral, to fight for trans inclusion in the military. Some trans people are proud to be involved in the military or hope to someday serve their country in this way, while others feel the military is simply another patriarchal institution that should be dismantled.
In 2016, the Pentagon announced it was lifting the ban on service by transgender people in the US military. Transgender military personnel will also now be provided with transition-related health care. However, new recruits are expected to have transitioned at least eighteen months prior to starting service.
There are numerous controversies within trans communities about the best ways to use laws to improve the lives of trans people. In 2015, the Supreme Court legalized same-sex marriage in all fifty states. This was a historic moment that some believed would lead to increased LGBTQ+ rights legislation in many other ways, but it also represented the culmination of a period in which a large number of trans and queer people felt that the focus on marriage equality pushed aside other issues more important for the LGBTQ+ community. Many trans people, for example, continue to lack access to transition-related health care, while countless LGBQ+ people also have difficulty obtaining primary care or mental health care; discrimination is still rampant in housing, employment, and education; and many parts of the LGBTQ+ community face poverty, all of which leads some to argue that the resources devoted to marriage could have been better spent.
Health care in the United States is a confusing web of rules and regulations, and is subject to change by federal and local governments. Employer-sponsored health insurance often explicitly excludes any care that is considered part of transition, or it initially rejects claims, putting the burden on the already stigmatized enrollee to endure a lengthy and frustrating appeal process. The Affordable Care Act (often called Obamacare) of 2010 bans sex discrimination in federally subsidized health care, and guidelines interpret this as including discrimination against transgender people. The result is that Medicare, the federal health-care program for senior citizens; Medicaid, the federal-state health-care program for low-income people; and health insurance bought through state exchanges cannot discriminate. However, what discrimination means legally is debatable. These plans can no longer categorically exclude transition-related care nor deny services based on a person’s transgender status. It remains unclear whether these programs are required to provide all medically necessary transition-related care. Medicare provides hormone therapy and, as of a 2014 ruling, also covers gender-affirming surgeries. Medicaid coverage varies from state to state, and most state programs do not pay for hormones or surgeries, although this is changing. A minority of states have passed legislation banning trans exclusions in insurance plans. These include California, Colorado, Illinois, Massachusetts, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
In almost every aspect of their lives, including school, work, travel, and interactions with law enforcement, trans people benefit from having identification documents that match their name and gender. One of the most difficult aspects of obtaining these documents is that many are regulated on a state level, and each state has different requirements. The requirements to change gender markers on driver’s licenses, for example, vary from state to state. In some states, gender-affirming surgery is required for proof. In others, a letter from a physician stating that someone has medically transitioned will suffice.
States also have a variety of approaches to gender changes on birth certificates. Those seeking a new birth certificate must do so through the state in which they were born, and so some trans people, now living in progressive states, may be unable to change their birth certificates if they were born somewhere else, no matter what they do. Other states require hormonal or surgical transition. Some states will amend the original birth certificate, while others will issue a completely new one.
On a federal level, it has become easier for transgender people to obtain appropriate identification. In 2010, the State Department announced that gender-affirming surgery was no longer required to obtain a gender change on a passport. Surgery could be replaced by a letter from a physician stating that the person had undergone appropriate clinical treatment for gender transition. In 2013, the Social Security Administration also decided that proof of surgery was no longer required to make a gender change in their records and that either a physician’s letter or the submission of a government-issued form of identification with the correct gender would be sufficient.
Legal protections for transgender people are steadily increasing, sometimes on a local level and other times through national legislation or guidelines. Sometimes the law lags behind social progress, while at other times it seems as if society can’t keep pace. There are disagreements over the best ways to advance, from changing our current systems to accommodate transgender people to tearing those systems down and rebuilding them from the ground up. However we decide to effect change, our goal should be to move toward a better future for all people, including those who are transgender and gender nonconforming, and not lose sight of the most marginalized.