Transgender and nonbinary persons' rights and issues

• Author: Elaina Rahrig
• Pages: 855-908

TRANSGENDER AND NONBINARY PERSONS’ RIGHTS AND

ISSUES

EDITED BY ELAINA RAHRIG

I. INTRODUCTION ......................................... 856

II. ACCESS TO GENDER-AFFIRMING HEALTH CARE .................. 858

A. FEDERAL LAW: THE PATIENT PROTECTION AND AFFORDABLE CARE

ACT ............................................ 862

1. Health and Human Services Interpretations. . . . . . . . . . . 862

2. Constitutional Challenges . . . . . . . . . . . . . . . . . . . . . . . . 864

B. STATE LAWS ...................................... 865

1. Prohibiting Health Insurance Coverage Exclusions . . . . . 865

2. Excluding Gender-Affirming Care from State Employee

Benefits Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866

3. Criminalizing Gender-Affirming Care for Trans Youth . . 867

C. RELIGIOUS EXEMPTIONS .............................. 868

1. Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868

2. Trump and Biden Administration Policies and Resulting

Legal Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869

3. State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871

III. VIOLENCE AGAINST TRANSGENDER INDIVIDUALS . . . . . . . . . . . . . . . . . 872

A. DOMESTIC VIOLENCE ................................ 872

B. HATE CRIMES ..................................... 874

1. Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 875

2. State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 876

C. GAY AND TRANS PANIC DEFENSES ....................... 877

D. POLICE MISTREATMENT ............................... 879

E. VIOLENCE IN PRISON................................. 881

IV. PUBLIC ACCOMMODATIONS ................................ 886

A. ANTI-DISCRIMINATION LAWS ........................... 886

B. DISCRIMINATORY LAWS............... ................ 888

C. DISCRIMINATION IN SCHOOLS ........................... 890

V. HOUSING ............................................. 894

A. FEDERAL POLICY ................................... 895

B. STATE POLICY ..................................... 897

VI. IDENTITY DOCUMENTS....................................

....................................

898

A. FEDERAL RULES 899

B. STATE RULES ...................................... 900

1. Drivers’ Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900

2. Birth Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902

855

VII. CONCLUSION .......................................... 907

I. INTRODUCTION

The 2020s have been monumental for the rights of transgender persons. While

trans individuals continue to face disproportionate discrimination and violence,

in Bostock v. Clayton County, the Supreme Court held that Title VII explicitly

protects trans employees.

1

Furthermore, high-profile trans individuals such as

Sarah McBride, who recently became the United States’ (U.S.) first openly trans

state senator, are bringing heightened visibility and support to the struggle for

transgender rights and social acceptance.

2

Veronica Stracqualursi, Delaware Democrat Sarah McBride to become nation’s first-ever

transgender state senator, CNN (Nov. 4, 2020, 10:19 AM), https://perma.cc/SLS7-F7ME.

In recent years, trans individuals have

competed in the U.S. Open, graced the cover of TIME and Vanity Fair, presided

over courtrooms as judges, and served with distinction in the military.

3

Milestones in the American Transgender Movement, N.Y. TIMES (Aug. 28, 2015), https://perma.

cc/YUQ9-JQ5X.

The strug-

gle for transgender equality has also been fought on the political and legal fronts.

The first transgender lobbying day took place in 1995 in the District of Columbia

(D.C.).

4

Thirteen years later, Stu Rasmussen was elected the first openly trans

mayor of a U.S. city.

5

The following year, then-President Barack Obama nomi-

nated the first openly transgender federal appointees to serve in his Administration,

later hiring the White House’s first openly transgender staff member.

6

In 2021,

newly elected President Joe Biden nominated Rachel Levine to serve as the

Assistant Secretary of Health. Levine is the first openly transgender federal official

confirmed by the U.S. Senate.

7

Samantha Schmidt, John Wagner, & Teo Armus, Biden selects transgender doctor Rachel Levine

as assistant health secretary, WASH. POST (Jan. 19, 2021, 6:20 PM), https://perma.cc/QYW2-XAUX.

As trans visibility in popular culture and media is increasing and efforts are

being made to center transgender people in social movements, so too is backlash

against rights for transgender persons. Trans people are still subject to dispropor-

tionate stigma, discrimination, and violence.

8

Kiara Brantley-Jones, Steve Osunsaml, & Ashley Schwartz-Lavares, Black Trans Lives Matter:

Activists call for inclusion in racial justice movement, ABC NEWS (Oct. 20, 2020, 4:53 PM), https://

perma.cc/U2KM-W25D.

Federal Bureau of Investigation

(FBI) data shows that the number of hate crimes motivated by gender identity

rose from thirty-three incidents in 2013 to 118 in 2015 and has remained in the

triple-digits in the years since.

9

See FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUST., UNIFORM CRIME REPORT: HATE CRIME

STATISTICS, 2015 4 (2016), https://perma.cc/NM83-2MCU (last visited Mar. 3, 2023); FED. BUREAU OF

INVESTIGATION, U.S. DEP’T OF JUST., UNIFORM CRIME REPORT: HATE CRIME STATISTICS, 2013 4 (2014),

https://perma.cc/HT5M-BZNP; see, e.g., FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUST.,

UNIFORM CRIME REPORT: HATE CRIME STATISTICS, 2017 4 (2018), https://perma.cc/23AG-LWGP.

Lack of uniform documentation procedures,

1. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

2.

3.

4. Id.

5. Id.

6. Id.

7.

8.

9.

856 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:855

failure to properly identify and distinguish gender identity from sexual orienta-

tion, and questionable reporting rates cast doubts on the accuracy of current data,

suggesting that hate crimes motivated by gender identity are more common than

statistics indicate.

10

See Daniel Engber, The FBI Says Hate Crimes Are Soaring. It Actually Has No Idea, SLATE

(Nov. 14, 2018, 3:54 PM), https://perma.cc/EU93-JZXL.

The movement for rights for transgender persons is also largely fought on the

state level, resulting in a broad variation among the states in the rights granted to

transgender people. Research by the Movement Advancement Project summa-

rizes legal rights and protections afforded to transgender individuals in each state

and considers laws that both negatively and positively affect trans rights. Sixteen

states and D.C. have high gender identity equality status, five states and Puerto

Rico are medium equality status, five states have fair equality status, nine states

and the U.S. Virgin Islands are low equality status, and fifteen states and three ter-

ritories (American Samoa, Commonwealth of the Northern Mariana Islands, and

Guam) are negative equality status.

11

Snapshot: LGBTQ Equality by State, MOVEMENT ADVANCEMENT PROJECT, https://perma.cc/

H6AA-DD5E (last visited Mar. 5, 2023).

Notably, legal protections explicitly cover-

ing gender identity lag significantly behind those covering sexual orientation.

12

This Article uses the terms “transgender” or “trans” to refer to a person whose

gender identity is different from the sex assigned to them at birth. Gender identity

is distinct from sex and sexual orientation. Gender identity refers “to each per-

son’s deeply felt internal and individual experience of gender—which may or

may not correspond with the sex assigned at birth—including the personal sense

of the body and other expressions of gender” such as dress, speech, and manner-

isms.

13

The Yogyakarta Principles: Principles on the Application of International Human Rights Law in

Relation to Sexual Orientation and Gender Identity, INT’L COMM’N OF JURISTS & INT’L SERV. FOR HUM.

RTS., 6 n.2 (2007), https://perma.cc/5GED-85Y8.

Sex refers to “a classification, generally as male or female, according to

the reproductive organs and functions that derive from the chromosomal comple-

ment.”

14

Carolyn M. Mazure, What Do We Mean by Sex and Gender?, YALE SCH. MED. (Sept. 19, 2021),

https://perma.cc/4DBH-LT24.

Sexual orientation refers to an individual’s emotional, affectional, and

sexual attraction to individuals of the same gender or a different gender.

15

On both the state and federal level, trans people lack the legal protections

needed to lead healthy, safe, and dignified lives. This Article addresses the cur-

rent state of legal protections for transgender people. Part II covers access to gen-

der-affirming healthcare, including challenges with insurance and discrimination

when accessing care such as hormone replacement therapy (HRT), under the

Affordable Care Act and its state-level companions. Part III provides an overview

of violence against transgender individuals by various actors and discusses legis-

lative efforts to address disparities across intersectional lines. Part IV summarizes

10.

11.

12. See id. (classifying fifteen states and three territories as negative equality regarding gender

identity and four states as negative equality regarding sexual orientation).

13.

14.

15. Id. at 6 n.1.

2023] TRANSGENDER RIGHTS & ISSUES 857