The Next Frontier: Transgender Legal Rights

• Citation: Vol. 37 No. 3
• Publication year: 2014
• Author: By Ilona M. Turner

The Next Frontier: Transgender Legal Rights

MCLE SELF-STUDY ARTICLE

(Check end of this article for information on how to access 1.0 self-study credit.)

By Ilona M. Turner^*

A 16-year-old transgender girl in Contra Costa County is repeatedly bullied at school for her feminine gender expression. She complains to school officials but the harassment continues, day after day, and she grows increasingly desperate. One day another student who is her primary tormentor spits gum in her face. Shortly thereafter, pushed over the edge and feeling completely out of options, she responds physically. Two other bullies jump in to assist the first one. The episode is caught on cell phone video, with three girls plainly attacking the transgender teen. When the situation draws the attention of the district attorney, however, criminal charges are filed only against the bullied student.

Although some have proclaimed total victory for the lesbian, gay, bisexual, and transgender (LGBT) movement in the United States, particularly in the wake of the United States Supreme Court's marriage rulings last summer,¹ that assessment is premature on a number of counts. While lesbian, gay, and bisexual Americans have finally achieved a significant measure of public acceptance and formal equality, their transgender siblings remain further behind on nearly every measure, from legal protections to public understanding.

Nonetheless, change is coming for the transgender community as well. A TIME Magazine cover story recently asserted that the nation has reached "the transgender tipping point," with unprecedented visibility and legal recognition.²

The purpose of this article is to provide a national and California focused survey of transgender law developments related to identity documents, health care, employment discrimination, and schools. But before delving into those legal issues, we will start with the definition of some terms that may be unfamiliar and a brief primer on who transgender people are.

I. TERMINOLOGY

• Transgender means someone whose sex at birth is different from who they know they are on the inside.
• A transgender woman (or girl) is someone who was assigned the sex of male at birth, but identifies as a woman (or girl).
• A transgender man (or boy) is someone who was assigned the sex of female at birth, but identifies as a man (or boy).
• Transsexual is a word that may refer more specifically to a person who lives or intends to live full-time in accordance with their gender identity.
• Gender identity is a person's core understanding of themselves as male or female, or something in-between. Everyone has a gender identity.
• Gender expression is how a person expresses their gender to the world. That expression may be masculine, feminine, or androgynous.
• Sexual orientation is a person's physical or emotional attraction to people of the same and/or other gender: for example, straight, gay, or bisexual. Note that sexual orientation is distinct from gender identity and expression. Transgender people can be gay, lesbian, bisexual, or straight, just like other people.
• Gender nonconforming can describe someone whose gender expression does not conform to stereotypes. Keep in mind that those stereotypes or expectations for what men and women ought to be like have varied greatly over time and across cultures.
• Transition is the process of changing from living in the gender role associated with the sex assigned at birth to the gender role that accords with a person's gender identity. Transition may include "coming out" to family and friends; asking to be called by a new name and pronoun; adopting a new hairstyle and clothing; changing the name and/or gender marker on legal documents; and, for many transgender people, accessing medical treatment such as hormones and surgery.

II. CHALLENGES FACED BY THE TRANSGENDER COMMUNITY

Despite growing acceptance, transgender people continue to face tremendous amounts of bias and discrimination. As a result, they are seriously disadvantaged and marginalized on just about every metric. A 2009 survey of 6,450 transgender people nationwide reported devastating findings:³

• 90% of transgender people report having experienced some kind of harassment or mistreatment on the job or feeling pressured to hide who they are.
• 47% report having lost out on employment opportunities because of their gender identity, ranging from not getting a job to being fired or being denied a promotion.
• 13% of transgender people surveyed were unemployed-more than double the national average at the time the study was done. That unemployment rate jumped to four times the national average for transgender people of color.
• 15% lived in extreme poverty, with incomes of $10,000 or less annually—also double the national average.
• Suicide attempt rates for the transgender community are 41%, compared to 1.6% for the general population.

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These statistics paint a bleak picture. As a result of widespread prejudice, transgender people are disproportionately unemployed, underemployed, homeless, and engaged in street economies to survive. They are then subject to disproportionate rates of violence, police harassment and incarceration.

III. LEGAL ADVANCES

While transgender people still face serious obstacles in nearly every area of life, the law is one tool that is increasingly being used to counter some of those challenges. California in particular has taken a leading role in establishing legal protections for transgender individuals.

In the 1970s, California was among the first wave of states to enact legislation explicitly permitting transgender people to amend the gender marker on their birth certificates.⁴ In 2003, California was the fourth state to adopt a law prohibiting discrimination in employment against transgender or gender-nonconforming people.⁵ In 2005, California enacted the nation's very first law to prohibit discrimination against transgender people by health insurance companies.⁶ In 2011, California became one of the first two states (along with Vermont) to enact a law permitting transgender people to change the sex designation on a birth certificate without proof of surgery. And in 2013, California was the first state to pass a law to explicitly ensure that transgender students could participate equally in all school activities.⁷

This article will examine some of those legal developments more closely, specifically in the areas of identity documents, health care, employment discrimination, and schools.

Identity Recognition

A critical issue for many transgender people is accessing identity documents that reflect who they are. In the 2009 National Transgender Discrimination Survey, 44% of respondents reported having been denied service, harassed, or assaulted when presenting identity documents that did not match their gender presentation.⁸

In 1977, California adopted a law permitting transgender people to change the gender marker on their birth certificate if they could present evidence that they had undergone "surgery that changes sex characteristics."⁹ However, that type of requirement is still beyond the reach of many transgender people, due primarily to the combination of the high cost of surgery and near-pervasive exclusions for treatment related to gender transition in both public and private health insurance plans. The National Transgender Discrimination Survey found that only 25% of transgender women and 4% of transgender men had undergone genital surgeries.¹⁰ Furthermore, doctors recognize that no single type of treatment is necessarily appropriate or desirable for every transgender person, who may nonetheless need access to identity documents that reflect how they live their lives.¹¹

More recently, though, both state and federal laws have been changing to permit transgender people to amend the gender marker on documents based on their identity, rather than requiring every person to have undergone some specific medical procedure that may not be appropriate for or needed by all transgender people. The State Department was the first federal agency to adopt that standard, for U.S. passports, in 2010. The revised passport standard permits a transgender person to change the gender marker upon submission of certification from a physician confirming that the person has undergone "appropriate clinical treatment for gender transition"— in other words, treatment that is appropriate for that individual, as determined by their medical provider.¹² The Social Security...