Transgender Rights

For the LGBTQ America Today Encyclopedia, Greenwood Press (2008)

This broad concept refers to legal, social, political and economic equality and justice for transgender citizens without regard to their gender identity or expression.  U.S. transgender advocates face issues somewhat different from other civil rights movements. The concept has not yet achieved as much acceptance as other U.S. civil rights movements. At the same time, however, transgender legal rights have increased dramatically since the beginning of the 21st century. 

One area of strong focus for transgender advocates is the inclusion of “gender identity and expression” in statutes prohibiting discrimination.  Such statutes usually include prohibitions on discrimination in public contracts, public accommodations (e.g., theaters and restaurants), housing, and credit and lending transactions. At the time of this writing, however, there is no U.S. federal statute specifically prohibiting discrimination based on gender identity, though advocates have succeeded in passing such laws in nine states and almost one hundred cities and counties, as discussed below. 

There is some disagreement between advocates as to whether proposed legislation protecting “sexual orientation” should also include “gender identity and expression.”  Those who say no argue that the categories are conceptually distinct, that it will be easier to pass a law based on sexual orientation alone, that laws based on gender identity will be easier to pass once discrimination on the basis of sexual orientation is prohibited, and that is unfair to ask gays and lesbians to wait for rights until transgender people are sufficiently accepted by US society at some future point. Others argue, to the contrary, that sexual orientation and gender identity discrimination are twin concepts that should be part of a single LGBT movement, that it is easier to educate the public at one time and to pass one law, rather than two, and that it is unfair to ask transgender people to take a back seat to gay and lesbian interests.  A sign of the coming of age of the transgender rights movement is the fact that, although the proposed federal Employment Non-Discrimination Act has been introduced a number of times in the U.S. Congress with protection only for sexual orientation, a number of prominent gay and lesbian advocacy organizations have said they will not support the bill unless it is re-introduced with language prohibiting gender identity discrimination, and it is expected that such a bill, referencing both sexual orientation and gender identity will be introduced in 2007. 

Transgender advocates are also currently working on addressing U.S. laws that interfere with the ability of transgender people to obtain corrected government documentation in accord with their gender identity. Some states and federal agencies do not permit changing government identification records to reflect a gender different from the sex assigned at birth.  Others require expensive sex reassignment surgery (also known as “gender confirmation surgery”) in order to do so, although most U.S. public health benefits systems, as well as private insurers, refuse to cover such surgery on the grounds that it is not “medically necessary.”  Even when a change is made, courts and government agencies often refuse to honor it. For purposes of marriage, for example, several recent rulings by state courts have held that transgender people are considered to be their original birth sex, even after sex reassignment surgery.  

The surgical requirement is a particularly contentious element of transgender rights. Many transgender advocates consider it problematic because it only recognizes transgender identity when accompanied by surgical sex reassignment. This creates a classic Catch-22 situation, because the psychiatric approval required to perform such surgery will not be given unless the transsexual person has lived and worked in the role of the opposite gender for a substantial period of time, usually at least one year. Thus, a transgender person who wishes to obtain sex reassignment surgery must live for a substantial period of time with government identification that discloses their transgender status, subjecting them to further prejudice and discrimination. In addition, the surgery requirement is problematic because transgender identity is a nontraditional form of “gender identity,” a concept that refers to psychological, behavioral and social identity as male or female, and therefore does not imply a change in physical sexual characteristics. Thus, the surgical requirement springs from a basic misunderstanding of transgender identity. Sex reassignment surgery is expensive, subject to medical risks, and not always desirable. It is often ineffective, particularly for female-to-male transsexuals, many of whom choose not to have phalloplasty because of the notoriously poor results. By requiring surgical intervention before recognition of a change in gender identity, these jurisdictions are perpetuating the idea that only anatomical sex is “real,” and that mere “gender identity” is not entitled to legal recognition.  The inconsistent requirements for different government agencies results in a confusing welter of identification methods for different government agencies, resulting in inconsistent gender markers on such documents as birth certificates, driver licenses, health insurance cards, and passports. 

The surgical requirement for recognizing gender identity has led to other problems. Some courts have held that laws prohibiting discrimination on the basis of gender identity do not permit transgender persons to use the opposite sex bathroom.  While some correctional facilities will place transgender prisoners according to their gender identity, most require placement of male-to-female transgender prisoners in male prisons, which can be physically dangerous, or else in "protective custody" (solitary confinement), which can cause serious mental disability, unless they have had sex reassignment surgery.  Most correctional facilities will also not permit transgender prisoners to receive cross-sex hormone treatments or sex reassignment surgery, even if paid for from private funds. Some homeless shelters, including those in San Fransisco, New York D.C., will admit homeless transgender people to shelters according to their gender identity, most will not. On the other hand, those in favor of a surgical requirement feel that, although one's gender identity may be different from one's sex, transgender persons without sex reassignment are not really of the opposite sex, and their introduction into sex-segregated spaces, such as bathrooms and prisons, will pose risks to the safety and comfort of those who are female-bodied.

Transgender advocates also work on laws that fail to protect transgender people from social discrimination Many U.S. laws prohibiting social discrimination do not protect transgender people.  The Americans with Disabilities Act, for example, which protects people with disabilities, specifically notes that it will not cover transgender people on the basis of a diagnosis of Gender Identity Disorder.  (It should be noted that some transgender advocates are working to eliminate this diagnosis on the ground that transgender identity is not a disorder.) The Civil Rights Act of 1964, which prohibits sex discrimination in employment, among other things, has been interpreted by the federal courts so as to exclude discrimination based on gender identity or expression. The federal "hate crimes" law, which provides for tracking statistics on bias crimes, does not track crimes based on gender identity, although violence directed against transgender people because of their transgender identity regularly occurs. Parents who transition from one gender to another are subject to state court rulings denying custody and visitation rights to avoid supposed psychological harm to the children. 

The transgender rights movement is beginning to achieve many goals in transgender rights.  Many jurisdictions now permit transgender persons to obtain government identification with changed gender markers, and have laws prohibiting discrimination based on gender identity in employment, housing, credit and public accommodations.  One major federal court, the Sixth Circuit Court of Appeals (covering Michigan, Kentucky, Ohio and Tennessee), as well as a number of lower federal courts, have recently ruled that the Civil Rights Act’s prohibition on sex discrimination does apply to gender identity. The placement of transgender persons by gender identity without a surgical requirement has occurred successfully in sex-segregated facilities, such as correctional facilities, homeless shelters and college dormitories, in some areas of the country.

There are many organizations involved in advancing transgender rights.  Some of the most prominent that are specifically devoted to transgender civil rights include GenderPAC, the Sylvia Rivera Law Project (SRLP), and the National Center for Transgender Equality (NCTE). These organizations inhabit a range of organizational identities.  GenderPAC is specifically devoted to ensuring that "classrooms, communities and workplaces are safe for everyone to learn, grow and succeed - whether or not they meet expectations for masculinity and femininity."  Its main method is educative and community-oriented, rather than explicitly political or legal, and focuses on "gender” more generally, as opposed to an explicit focus only on transgender issues. By contrast, the mission of the Sylvia Rivera Law Project (SRLP), named in memory of transgender advocate Sylvia Rivera, is focused more on providing legal services to marginalized transgender people to help them overcome government discrimination, such as obtaining correct government identification, obtaining access to essential services such as medical care, substance abuse treatment, public benefits, public restrooms and homeless shelters. It is also involved in high-impact litigation that will provide legal precedents helpful in these areas. NCTE, on the other hand, is specifically dedicated to political action on the federal level in Washington, monitoring federal activity and communicating this activity to transgender advocates around the country, providing congressional education, and acting as a clearinghouse for transgender advocates.

An indication of the rapidity of the increase in transgender rights is shown by the rapid increase of city and county ordinances prohibiting dissemination on the basis of gender identity or expression. Ordinances were nonexistent prior to 1975, when Minneapolis was the first city to adopt an ordinance protecting gender identity.  By 1997, there were 17 ordinances in existence. The rate of enactment accelerated dramatically in 2002, when the enactment of city and county ordinances increased by over 40% from the year before, going from 39 to 55, which more than tripled the number of ordinances since 1997.  There are, at the time of this writing, 86 cities and counties with ordinances explicitly prohibiting transgender discrimination, as well as 9 states.  This showing, however, lags behind protections for “sexual orientation,” which at the time of this writing exist in over 300 cities and counties and 26 states.

The increase in company policies is similarly dramatic. The first company policy proclaming equal employment opportunity based on gender identity was adopted in 1997 by Lucent Technologies. The rate of adoption accelerated dramatically in 2001, when the adoption of company policies increased by over 100% from the year before, going from 12 to 25. There are now 435 employers with policies prohibiting gender identity discrimination (up from 25 in 2001), including 118 Fortune 500 companies, and 75 colleges and universities.  This showing also lags behind protections for sexual orientation, which at the time of this writing exist in over 3,000 employers, including 435 Fortune 500 companies, and 562 colleges and universities.

In addition to the efforts of those organizations devoted solely to transgender advocacy, gay and lesbian organizations, which have a much larger fund of expertise, resources and credibility, have adopted the issue of transgender rights a a part of their LGBT rights mission. For example, the Human Rights Campaign has successfully used its Corporate Equality Index, a rating system designed to show corporate diversity leadership in regard to LGBT employees, to raise consciousness about transgender issues in major corporations.  The National Gay and Lesbian Task Force has also contributed its expertise in political lobbying to transgender advocates across the nation, assisting them in creating proposed legislation and planning lobbying campaigns. This alliance between transgender advocacy organizations and LBGT advocacy organizations has greatly contributed to the rapid increase of transgender rights.  

While transgender rights have made great strides, there still remains much discrimination against transgender people. Some legal theorists warn that “rights talk” can disguise rampant discrimination because there often is a disconnect between law on the books and the law in action. While law on the books creates the appearance that discrimination against transgender people has been all but eliminated, the law in action often fails to protect because people disguise their discriminatory actions by using other factors as a pretext.

Jillian Todd Weiss

Currah, Paisley, Juang, Richard M and Minter, Shannon Price. 2006. Transgender Rights. Minneapolis: University of Minnesota Press.

Whittle, Stephen. 2002. Respect and Equality: Transsexual and Transgender Rights. Portland: Cavendish

Sharpe, Andrew. 2002. Transgender Jurisprudence. London: Cavendish